OCTOBER 19, 1939.
Equitable petition. Before Judge Hawkins. Cobb superior court. July 12, 1939.
Hirsch Smith, A. S. Clay, Blair Gardner, George D. Anderson, and D. F. McClatchey, for plaintiff in error.
Morris Welsch, Fred Morris, and Carmichael Grove, contra.
1. Where the allegations of a petition showed that the property levied on was worth many times the amount of the execution, and that it was capable of subdivision in a manner to satisfy the execution, a cause of action for cancellation because of excessive levy was alleged.
2. Where the petition for cancellation of tax deeds to realty shows that defendants have received the rents and profits from the land of a value equal to or exceeding the amount of taxes paid, and an accounting is prayed for, a tender of the amount paid for taxes is not necessary.
3. Where it is not shown that defendant has made valuable improvements, or that procurement of evidence is rendered difficult because of long lapse of time, the action will not be dismissed because of laches.
4. It is not error to overrule special demurrers to allegations of a petition, on the ground that such allegations are mere conclusions, where such conclusions are supported by facts alleged. And where grounds of demurrer are confusing and uncertain, since a demurrer must itself be free from defect, such demurrer will be overruled.
No. 13029. OCTOBER 19, 1939.
On November 1, 1938, Jessie May Reynolds filed her petition against the Marietta Realty and Development Company and E. M. Legg, sheriff of Cobb County, seeking an injunction, cancellation of certain deeds, recovery of described lands, and other relief. M. E. Kilpatrick, the City of Marietta, and Cobb County were made parties defendant; and George H. McMillan as successor in office of E. M. Legg, deceased, is now a party defendant. The following facts were alleged in the petition: The father of the plaintiff died testate in 1892, leaving a widow and eight children. To certain of his children he devised real estate for life, with the provision that if they died without bodily heirs it should revert to his estate and be divided among his heirs. The plaintiff and Mrs. Ella R. Guyton were two of the children to whom real estate was so devised. Mrs. Guyton died in May, 1935, leaving no bodily heirs; and since two of the brothers of the plaintiff had previously died without leaving bodily heirs, the plaintiff is entitled to a one-fifth undivided interest in the real estate which was devised to Mrs. Guyton. The plaintiff is unmarried, has no bodily heirs, and is too old to have children, and therefore she has only a life estate in the realty which was specially devised to her by her father. This suit involves several described tracts of land in the City of Marietta, which were devised, under the conditions above stated, one to the plaintiff and the others to Mrs. Guyton. Under a City of Marietta fi. fa. for street improvements, dated September 1, 1928, the tract devised to the plaintiff was levied on and sold in 1929. The City of Marietta was the purchaser at the sale, and received a deed from the city marshal. During the years 1929 to 1932 the tracts which Mrs. Guyton received from her father's estate were sold under six separate fi. fas. for State and county taxes, city taxes, and Marietta street-paving assessments. In each case the taxing authority was the purchaser at the sale, and received a deed to the property. The City of Marietta conveyed each of the tracts purchased by it to M. E. Kilpatrick, who thereafter by quitclaim deed conveyed the properties to the defendant realty company. This defendant received also a deed from the county to the tract of land which was sold under a fi. fa. for State and county taxes. Each parcel of land described was worth a stated amount which was many times the amount of the levy against it, and each tract was capable of subdivision in such manner that a small portion thereof could have been sold for a sum sufficient to pay the claim against the entire tract; and therefore all of the levies upon the described tracts of land were excessive and void, and the sales and deeds made in pursuance thereof are void and passed no title. The fi. fas. failed to state the specific interest of the defendants therein; and for this additional reason the levies, sales, and deeds thereunder are null and void. The defendant realty company has for more than four years collected the rents and profits from the realty described in the petition.
"Petitioner does not know the exact amount, but the rents of said real estate has during said time amounted to more than $100 per month." She is entitled to all the rents and profits which this defendant has received during the past four years from the realty to which she holds a life-estate under her father's will; and as the owner of a one-fifth undivided interest in the other properties described in the petition she is entitled to one fifth of the rents and profits therefrom since the death of her sister, Mrs. Guyton, in May, 1935. While the charter of the defendant realty company was applied for by M. E. Kilpatrick, T. J. Long, and Welborn Cody, they were only acting for D. F. McClatchey Sr., now deceased, his son D. F. McClatchey Jr., Dr. Herbert Reynolds, and Dudley Reynolds, who in fact originated the company and who have owned and controlled the company ever since it was formed. M. E. Kilpatrick was acting as agent for the last-named parties when he obtained from the City of Marietta deeds to the properties described in the petition, and when he deeded the properties to the defendant realty company. D. F. McClatchey Sr., Dr. Herbert Reynolds, and Dudley Reynolds were grandsons of petitioner's father, and at the time the company was formed and when the deeds to the property were obtained from M. E. Kilpatrick and the City of Marietta they had full knowledge of the provisions of the will of petitioner's father, the interest held by petitioner, her sister and the other heirs, and of the value of the properties involved. The sole officers of the defendant realty company are D. F. McClatchey Jr., Herbert Reynolds, and Dudley Reynolds. The petitioner has no adequate remedy at law, and equity should take jurisdiction of the case to prevent a multiplicity of suits. Some of the property involved has recently been levied on and is about to be sold by the sheriff of Cobb County under stated tax executions for which neither the petitioner nor her property is liable. The prayers were (1) that the sheriff be enjoined from selling the property levied on under the stated tax executions; (2) that the realty company be enjoined from selling or changing the status of the property; (3) that the levies and sales and the deeds made in pursuance thereof by Cobb County, the City of Marietta, and M. E. Kilpatrick be decreed null and void and ordered canceled of record; (4) that the plaintiff have judgment against the realty company, for the benefit of herself and the other owners of the property, in the amount of the rental value of the properties during the four years preceding the filing of this complaint; (5) for appointment of a receiver to manage and sell all of the real estate involved, except the tract devised to the plaintiff for life; and (6) for general relief.
By amendment it was alleged that the sales described in the petition had never been completed by payment of the purchase price, and that by reason of this fact the sales and deeds made in pursuance thereof were void and the twelve-months period of redemption had not begun to run. The following prayer was added: "That petitioner have an accounting with the defendant Marietta Realty and Development Company, and with any other defendant in the said cause that this court of equity may determine is entitled to an accounting; and that the proceeds from the sale of the real estate in question, and the rents therefrom, as prayed in the original complaint, be distributed and disposed of, as prayed in the original complaint as amended, as the court may direct." By order of the court the persons named in the petition as owning four fifths of the property to which the petitioner claimed one fifth interest were made parties to the suit. Other interested parties were allowed to intervene. From the exhibits attached to the petition it appears that the fi. fas. issued for street paving assessments levied on the properties involved contained the following language: "You [the marshal] are hereby commanded to levy on the goods and chattels, lands and tenements, of Mrs. C. A. Guyton, and especially the following described property [describing the same], or so much thereof as shall be sufficient to make the sum of" the assessment, etc. The realty company demurred on the grounds, (a) that the petition fails to state a cause of action for equitable relief; (b) that the petitioner is barred from recovering, because of laches; and (c) that the petitioner has not offered to do equity by making a tender of the amounts paid by the purchasers at the tax sales. This defendant also urged several grounds of special demurrer, which are sufficiently stated in the opinion which follows. The judge overruled all grounds of demurrer, and the defendant excepted.
1. The allegations of the petition were sufficient to show that the sales were void for excessive levy. Williams v. Forman, 158 Ga. 89 (5) ( 123 S.E. 20); Thomas v. Crawford, 175 Ga. 863 ( 166 S.E. 437); Wood v. Sommerfield, 185 Ga. 441 ( 195 S.E. 428); Zugar v. Scarbrough, 186 Ga. 310, 319 ( 197 S.E. 854). The petition stated a cause of action for cancellation of the deeds made in pursuance of the void levies.
2. "He who would have equity must do equity, and give effect to all equitable rights in the other party respecting the subject matter of the suit." Code, § 37-104. Ordinarily, before one would be entitled to have a tax sale set aside and deeds executed in pursuance thereof canceled on the ground that the levy of the execution was excessive, he must tender to the purchaser at such sale the amount paid by such purchaser, with interest. Clark v. C. T. H. Cor., 181 Ga. 710 (11) ( 184 S.E. 592); Bibb County v. Elkan, 184 Ga. 520 (2) ( 192 S.E. 7); Durham v. Smith, 186 Ga. 565 (2) ( 198 S.E. 734). In the instant case it is contended that the petition was subject to demurrer, because the plaintiff had failed to tender to the realty company the amount which it expended to obtain the tax deeds from Cobb County and the City of Marietta. In the petition it was alleged that this defendant had for more than four years collected from the realty involved rents and profits amounting to more than $100 per month. As shown by exhibits attached to the petition, the amount paid by the defendant for the deeds in question, with interest to the date of filing the suit, was approximately the amount alleged to have been received as rents and profits during the last four years. These facts were sufficient to authorize the accounting for which the petitioner prayed; and under these circumstances a tender was not necessary. Wynne v. Fisher, 156 Ga. 656 (2) ( 119 S.E. 605); Jones v. Laramore, 149 Ga. 825 (2) ( 102 S.E. 526); Fletcher v. Fletcher, 158 Ga. 899 (6) ( 124 S.E. 722); Southern Railway Co. v. Williams, 160 Ga. 541 (5) ( 128 S.E. 681); Zugar v. Scarbrough, supra. It is contended, however, that in seeking an accounting and other equitable relief the petitioner does not show an intention to do equity by offering to account to the defendant for such funds as it may have expended for taxes and improvements on the property while it has been in possession thereof. There is no merit in this contention. "Any one going into a court of equity and asking its aid, whether that aid be such as could be obtained in a court of law, or whether it be of a character obtainable only in a court of equity, submits himself . . to the imposition of such terms as well-established equitable principles would require." Charleston Western Carolina Ry. Co. v. Hughes, 105 Ga. 1, 21 ( 30 S.E. 972, 70 Am. St. R. 17). "A petition for an accounting need not offer to pay a balance if found against complainant." Code, § 37-307. If an accounting should be granted to the complainant, she would be liable for any sum that might be found to be due by her to the defendant. Mackenzie v. Flannery, 90 Ga. 590 (10) ( 16 S.E. 710). See Southern Railway Co. v. Williams, supra.
3. The petition was demurred to on the ground that the complainant was guilty of laches, for lack of diligence in filing this suit. "Equity gives no relief to one whose long delay renders the ascertainment of the truth difficult, though no legal limitation bars the right." Code, § 37-119. However, one in possession of land is not chargeable with laches in failing to bring suit to cancel deeds. Smith v. Burrus, 139 Ga. 10 (2) ( 76 S.E. 362); Echols v. Green, 140 Ga. 678 (3) ( 79 S.E. 557). Although some of the tax levies and sales complained of took place more than seven years before this suit was filed, it does not appear that the defendants in fi. fa. have been deprived of possession for that length of time. The petition does not disclose the exact date when the complainant was deprived of possession of the land to which she claims a life estate, but it is alleged that the realty company has had possession for more than four years; and construing the petition most strongly against her, it would seem that she was deprived of possession almost seven years before filing suit. At the time the other parcels of realty involved were sold they were in the possession of Mrs. Guyton, complainant's sister, who, according to the petition, obtained the land from her father's estate, with the condition that if she died without bodily heirs it should revert thereto. She died in May, 1935, without bodily heirs, and it was then that the complainant, as one of the five heirs of her father's estate, became entitled to one-fifth undivided interest therein. She thereafter waited about three and a half years before filing this suit. It was alleged that the realty company had notice of the condition of the title of the properties involved, at the time it obtained its deeds. Also, it does not appear that the defendant has been led by the petitioner's delay to make valuable improvements, or otherwise to act in such manner as to make it difficult for a court of equity to do justice between the parties, and it was not incumbent on the petitioner to allege the absence of such facts. 19 Am. Jur. 354, § 510. In view of the condition of the title, of which the defendant had notice, and of the lack of facts showing a change of situation, we think the court properly refused to sustain the demurrer on the ground of laches. See Equitable Building Loan Asso. v. Brady, 171 Ga. 576 (2) ( 156 S.E. 222); Citizens Southern National Bank v. Ellis, 171 Ga. 717 (3) ( 186 S.E. 603); Bleckley v. Bleckley, 189 Ga. 47 ( 5 S.E.2d 206).
4. The plaintiff in error filed special demurrers to several paragraphs of the petition, on the ground that certain allegations therein were mere conclusions of the pleader. The paragraphs attacked stated, in substance, that by reason of certain facts stated above the tax sales and the deeds made in pursuance thereof were void. The conclusions were supported, at least in part, by the facts alleged, and the court did not err in overruling these grounds of demurrer. See Western Atlantic Railroad Co. v. Roberts, 144 Ga. 250 ( 86 S.E. 930); Jefferson Fire Ins. Co. v. Brackin, 147 Ga. 47 (2) ( 92 S.E. 930); Southern States Portland Cement Co. v. Helms, 2 Ga. App. 308 ( 58 S.E. 524); Pacetti v. Central of Georgia Railway Co., 6 Ga. App. 97 (3) ( 64 S.E. 302); Tufts v. Threlkeld, 31 Ga. App. 452 (5) ( 121 S.E. 120). One ground of demurrer attacked a paragraph of an amendment wherein it was alleged that certain sales by the City of Marietta, at which the demurrant was the purchaser, had never been completed by payment of the purchase-money to the city marshal. The petition with the exhibits disclosed that the sales in question were for street-paving assessments made by authority of a special act of the General Assembly. Ga. L. 1917, p. 757. The relevant portion of the demurrer was as follows: "Paragraph 1 of the amendment is demurred to on the ground that even if the allegations of said paragraph were true, they could have no legal effect in this suit. The paragraph refers to the City of Marietta's bidding in at a tax sale property sold to meet the ad valorem taxes of said city. Municipal corporations are clearly authorized to bid in property, and there is no requirement of law that there be a passing of money at such sale." It is apparent from the demurrer and the briefs filed in this court that the demurrer was based on the ground that the sales were made under executions for ad valorem taxes due the city, and that no attempt was made to question the sufficiency of the allegations with respect to sales for street-paving assessments. It may be that sales made in pursuance of assessments authorized by the special act of the legislature are governed by the same provisions of law as those for ad valorem taxes, and it may be that payment by the city to the marshal is not required in either case, but these are questions which we do not decide, because it is clear that the demurrer did not present this question to the trial court or to this court. A demurrer, being a critic, must itself be free from imperfection. The grounds of demurrer being without merit, the court did not err in overruling them.
Judgment affirmed. All the Justices concur.