Opinion
22449.
SUBMITTED APRIL 14, 1964.
DECIDED MAY 7, 1964.
Equitable petition. Fulton Superior Court. Before Judge Pharr.
Victor K. Meador, N. T. Anderson, for plaintiff in error.
Haas, Dunaway, Shelfer Haas, George A. Haas, Hugh F. Newberry, contra.
1. A petition should not be dismissed on general demurrer where it states a cause of action for either legal or equitable relief.
2. There is no misjoinder of an action ex contractu with one ex delicto if a contract is set out solely by way of inducement while the breach of duty sounds in tort for wrongful eviction.
3. An injunction should be granted to prevent the defendant from disposing of the property during the litigation.
4. (a, b) The petition does not allege such facts and special circumstances as would warrant the appointment of a receiver to rent or sell the property or that an equitable decree be granted.
5. Where a paragraph contains allegations not subject to demurrer on the grounds urged, a special demurrer attacking the paragraph as a whole fails in its office as a critic and should be overruled.
SUBMITTED APRIL 14, 1964 — DECIDED MAY 7, 1964.
Joe L. Stephens brought his petition against Ryburn G. Stephens in Fulton Superior Court. The pertinent facts alleged in the petition as amended are as follows. At present the defendant, the plaintiff's son, holds record title, subject to a security deed, to a certain described house and lot. In 1957, prior to purchasing the property the defendant lacked funds to make the down payment and approached the plaintiff to induce him to supply half of such amount. The parties orally agreed that the plaintiff would furnish one half of the down payment and in return would receive, during his life, the use of the property as a residence, with exclusive use of one bedroom and joint use of several other rooms in the house. The plaintiff furnished the amount agreed upon, the defendant purchased the house, and pursuant to the arrangement the plaintiff assumed possession, furnishing his bedroom and supplying most of the other furnishings for the house. The plaintiff remained in the house for several years until a disagreement arose between him and the defendant, as a result of which in May, 1962, the defendant by acts of violence and threats of "maiming and death" drove the plaintiff from the house and changed the lock so that the plaintiff could not re-enter it.
The petition further alleged that the plaintiff has been entirely dispossessed of the house and premises, and deprived of the use and enjoyment of the premises as his home under the arrangement which has thereby been entirely repudiated by the defendant; that the plaintiff is 80 years old, is healthy and has a life expectancy of not less than 15 years, that he will live not less than 15 additional years; that the use of the room and premises has a total reasonable market value of $85 per month; that the plaintiff has been able to secure only a small portion of the furniture he placed in the house; that the furniture remaining has a value of $877; that the defendant has refused to "accord with" the plaintiff's demands that the defendant surrender back the furniture; that unless the defendant be restrained and enjoined he will sell his equity in the property in order to defeat the plaintiff's rights; that the defendant is insolvent and has no property or assets against which a judgment might be rendered; that besides the lien on the property there is an equity of $5,657.44 in the house and lot; that the defendant has legal title to no property other than the equity and about $500 in other property; that the plaintiff is without funds to redeem the property under Code § 39-201 and would lose a great sum representing unearned interest on the debt if required to take up the debt since the debt is interest bearing and the payments are only made as they become due.
The plaintiff prayed for damages for deprivation of the use of the real estate, of his rights under the contract to use the property, and for the household furnishings. Further prayers were: that his judgment against the defendant be decreed a lien on the defendant's property; that a receiver be appointed and directed to take over possession of the property; that the receiver rent the property and, after applying the rental to the payments due on the security deed and other necessary expenses, hold the remainder of the rentals to be applied to the plaintiff's claims; that the property be sold at a receiver's sale and that the plaintiff's recoveries be satisfied from the proceeds of the sale; that the defendant be enjoined from disposing of the property pending further order of the court.
The defendant demurred to the original petition and renewed his demurrers to the various amendments, besides adding new grounds of demurrer. The trial judge sustained ground 1 of the original demurrers, which attacked the petition for failing to set forth sufficient facts to constitute a cause of action against the defendant; his order recited that the demurrer was sustained on the ground "that the petition fails to set forth a cause of action in equity against the defendant." He also sustained several other grounds of demurrer and dismissed the petition. We shall treat more thoroughly the various grounds of demurrer in the opinion.
The plaintiff excepted and assigns as error the sustaining of the demurrers and the dismissal of the petition.
1. "Since the passage of the Uniform Procedure Act, where a suit is filed in a superior court, which has general jurisdiction both in law and in equity, the petition should not be dismissed on general demurrer if it states a cause of action for either legal or equitable relief." Farmers Merchants Bank v. Gibson, 211 Ga. 270 (4) ( 85 S.E.2d 513).
2. We can not agree with the contention of counsel for the defendant that the plaintiff attempted to join in one petition an action for damages for the breach of a parol contract and a recovery in tort for the deprivation of the plaintiff's furniture. Under the allegations of the petition the relation of the parties was that of landlord and tenant. Code § 61-101. However, according to the petition the plaintiff's tenancy was for his entire life with the rent previously paid. There was no misjoinder of an action ex contractu with an action ex delicto, for the averments are clearly to the effect that the plaintiff was seeking a recovery in tort for his wrongful eviction from the premises. The applicable rule is that: "a landlord who ... forcibly and violently ejects a tenant and his personal goods from the rented premises is liable to the latter in an action in trespass." Entelman v. Hagood, 95 Ga. 390 (1) ( 22 S.E. 545); Shores v. Brooks, 81 Ga. 468 ( 8 S.E. 429, 12 ASR 332). As was held in Smith v. Eubanks, 72 Ga. 280, the contract is set out solely by way of inducement since the breach of duty sounds in tort for the unlawful ouster. "The liability arises out of a breach of duty incident to, and created by, the contract; but it is only dependent upon the contract to the extent necessary to raise the duty. The tort consists in the breach of duty." City Suburban R. of Savannah v. Brauss, 70 Ga. 368, 377. See Rushin v. Central of Ga. R. Co., 128 Ga. 726, 729 ( 58 S.E. 357).
The petition in the instant case sets out a cause in tort for the wrongful eviction of the plaintiff by the defendant, and it was not improper to join with it in the same action the deprivation by the defendant of the plaintiff's possession of his furniture, which tortious act arose out of the same transaction. Smith v. Eubanks, 72 Ga. 280, supra; Shores v. Brooks, 81 Ga. 468, supra; Code § 3-113. The trial judge erred in sustaining ground 1 of the original demurrers which attacked the petition for failing to set forth sufficient facts to constitute a cause of action against the defendant; in sustaining grounds 2 and 3 of the original demurrers and grounds 2 and 3 of the additional demurrers which attacked the petition for misjoinder of causes of action; and in dismissing the petition.
3. Whether the petition shows the plaintiff had an estate or only a right in the property it does show that he had the right to possess and remain in one room and the right to use other parts of the house during his life. It also explicitly alleged that he had fully paid for his right, that the defendant was insolvent and that he will sell his equity in the property so as to deprive the plaintiff of his right to use the premises. The plaintiff, while not a tenant in common (with the defendant), still has a vested equitable interest in the property to protect.
The plaintiff, being without an adequate remedy, was entitled to the grant of an injunction. The trial judge erred in sustaining ground 18 of the original demurrers to prayer (j) which sought an injunction to prevent the defendant from disposing of his property.
4. (a) "The appointment of a receiver is recognized as one of the harshest remedies which the law provides for the enforcement of rights, and is allowable only in extreme cases, and under circumstances where the interest of creditors is exposed to manifest peril." Dozier v. Logan, 101 Ga. 173, 179 ( 28 S.E. 612). See Code § 55-303. Here, the petition does not allege sufficient facts to warrant the appointment of a receiver to rent the property and hold the proceeds, or sell the property at a receiver's sale. The trial judge did not err in sustaining ground 8 of the additional demurrers and grounds 15, 16 and 17 of the original demurrers to the prayers of the petition designated as (g), (h) and (i), which sought, respectively, the appointment of a receiver, and the rental and the sale of the property by such receiver.
(b) Ground 14 of the original demurrers attacked prayer (f) which prayed that any judgment which the plaintiff recover be decreed to constitute a lien on the property. There is adequate procedure at law to protect the plaintiff's rights when he obtains a judgment and no such circumstances are alleged as would authorize an equitable decree. See in this connection Code § 110-507; Code Ann. §§ 110-515 (Ga. L. 1958, p. 379) and 39-701 (Ga. L. 1955, pp. 425, 426). The trial judge did not err in sustaining ground 14 of the original demurrers.
5. The trial judge erred in sustaining ground 7 of the original demurrers which stated that the allegations of paragraph 16 of the petition were a conclusion of the pleader without facts on which to base such conclusion. The paragraph contained allegations that the plaintiff is 80 years old, healthy and with a life expectancy of 15 years; hence, the paragraph as a whole is not subject to demurrer upon the grounds urged. Where a special demurrer assaults the paragraph as a whole, without specifying the objectionable allegations, it must fail in its office as a critic, and should be overruled. Allen v. Allen, 196 Ga. 736, 748 ( 27 S.E.2d 679); Southern R. Co. v. Phillips, 136 Ga. 282, 285 (1) ( 71 S.E. 414).
Judgment reversed in part; affirmed in part. All the Justices concur.