Opinion
13349.
DECEMBER 3, 1940.
Equitable petition. Before Judge Grice. Liberty superior court. March 23, 1940.
W. C. Hodges, for plaintiffs in error. H. G. Dukes, contra.
1. The statute of frauds does not apply to a fully-executed contract for sale of land.
2. The petition did not seek specific performance, but asked for relief against persons other than the plaintiff's vendors; and there was no defect for want of sufficient or proper parties defendant.
3. As against the defendant D., the petition showed at least a perfect equitable title in the plaintiff, and a cause of action for injunction.
4. As to the defendant F., whose alleged claim against the land the plaintiff sought to avoid and have canceled, the petition was subject to the demurrer.
No. 13349. DECEMBER 3, 1940.
James Quarterman filed an equitable petition, naming as defendants (a) R. W. Duggar and W. D. Farris, residents, and (b) Effie Primus and Josephine Henry, non-residents of Georgia. The plaintiff alleged as follows: From birth he had lived with John E. Quarterman and his wife, Kate Quarterman, until they died, the former in 1933, and the latter in 1938. Kate Quarterman had two children, Josephine Henry and Effie Primus, by a former marriage. The plaintiff is a son of Josephine Henry, and was thus a grandson of Kate Quarterman. In the year 1929 John E. Quarterman and Kate Quarterman, the plaintiff's step-grandfather and grandmother, "gave to him all the real estate (hereinafter described) they owned, each acting individually and jointly as to their respective property, for and in consideration that he, petitioner, remain with them and make his home with them as long as they lived and be a companion to them in their old age, assisting in doing the chores, helping in the home, and waiting on them during their old age and sickness. They reserved to themselves the right to a life-estate or the right to live upon said property jointly with said petitioner. . . Petitioner accepted the offer made to him by John E. Quarterman and Kate Quarterman, and has in good faith performed his part of the contract, living with them as long as they lived, being a companion to them, assisting in the work around the house, helping them and taking care of them during their old age and illness." The property in question, as described in the petition, consisted of forty-four acres of land formerly belonging to John E. Quarterman, and an adjacent tract of twenty-four acres, formerly the property of Kate Quarterman. The plaintiff alleged that his possession as owner of such land has been open, notorious, and adverse to all persons except the life-interests of John E. Quarterman, and Kate Quarterman, which have terminated.
As to R. W. Duggar the following allegations were made: "That on or about the 17th day of August, 1939, the defendant R. W. Duggar claimed to have bought the interest of Josephine Henry, went upon said property and placed thereon posts, preparatory to putting up a fence and in running the fence line upon petitioner's property; . . also has been plowing the fields of petitioner. . . That petitioner asked defendant R. W. Duggar to desist from putting up said fence upon petitioner's property and plowing in said fields. That said defendant refused to comply with petitioner's request, and is continuing to build said fence which is being built along, upon, and over the land of your petitioner, and also plowing the fields. . . Petitioner shows that the building of such fence and plowing the fields are a trespass and will be a continuing trespass upon the land of petitioner and will cause petitioner irrevocable damages. . . Petitioner further shows that the said defendant, R. W. Duggar, has no right or claim in or over said land, and that he has no legal or equitable right to same; and that his erection of said fence and tilling the fields and attempting to take the property of petitioner is done wilfully and with the sole intent and purpose of annoying, injuring and damaging petitioner, and defrauding petitioner of his property."
As to W. D. Farris the petitioner alleged: "That defendant, W. D. Farris, is threatening to foreclose a claim of indebtedness for the principal sum of seventy-five dollars, ($75) with interest, evidenced by a note and secured by a deed dated 1928, made by John E. Quarterman against fourteen (14) acres, being the fourteen (14) acres described in paragraph ten (10). . . That petitioner has been in possession of the property since the same was given to him in 1929, and has denied the claim of W. D. Farris over said property, refusing to pay said claimed obligation, denying the indebtedness and the legal existence of said debt deed over the property. That petitioner has held said property openly, notoriously, and adversely against the said W. D. Farris." Paragraph 21: "Petitioner denies any right in W. D. Farris, and if he ever had any right the same became due and payable more than nine (9) years prior to the filing of this suit, and is barred by the statute of limitations." Paragraph 23: "Petitioner shows that if said note and debt deed were executed, which petitioner denies, the said W. D. Farris has no claim or right of action against the property, because said spurious claim was for a buggy upon which twenty-five dollars ($25) was paid, and the buggy was, after the payment of the said twenty-five dollars ($25) repossessed by W. D. Farris and was taken from John E. Quarterman, and the said contract rescinded by W. D. Farris."
The prayers of the petition were, for an order restraining Duggar from interfering with petitioner's possession of said property; that Farris be restrained from enforcing or attempting to enforce the collection of said note or debt deed against the property described; that a permanent injunction be granted against the defendants, forever prohibiting them from interfering with petitioner's right of possession, ownership, and/or title to the above-described property; that the deed from Josephine Henry to R. W. Duggar and the debt deed from John E. Quarterman to W. D. Farris be surrendered and canceled; for judgment decreeing said property as the property of petitioner; and for general relief.
Duggar and Farris jointly filed a demurrer. The first three grounds of which, designated by demurrants as general grounds, were as follows: "1. Defendants say there is no cause of action set forth in plaintiff's petition. 2. Defendants say there are no proper parties defendant named in said petition, in that specific performance of a parol contract for the sale of land is sought to be decreed against Kate Quarterman and John E. Quarterman, both of whom are alleged to be dead, and no person representing their interest, either as administrator, executor, or otherwise, are named defendants in this action. 3. Plaintiff shows in his petition no right, either in law or equity, in himself which would authorize or warrant the relief sought in said petition." Two grounds of special demurrer were as follows: "5. Demurs to, and moves the court to strike paragraph 21 of plaintiff's petition; for that same is mere conclusion of the pleader, without first setting forth the facts from which the conclusion [was] reached. 6. Demurs to and moves the court to strike paragraph number 23, because it fails to set forth any valid reason why the debt of Farris is not now a binding obligation against John E. Quarterman, and this deed constitutes a valid lien against said lands, is not good plea of payment, for that it fails to set forth the time, place, and parties to the alleged payments, or other facts which will give defendant proper information to file his answer thereto." The court overruled the "above and foregoing demurrer . . on each and every ground thereof." The demurrants excepted.
1. The statute of frauds does not apply to a contract for sale of land, which has been fully executed. Code, § 20-402 (1); Varnell v. Varnell, 156 Ga. 853 ( 120 S.E. 319). The allegations of the petition showed that the plaintiff had fully performed the contract by rendering the services agreed upon as consideration, that he had been admitted to possession by the vendors, and that he was in such possession as owner at the time the suit was filed. The petition did not seek specific performance, but asked for relief against persons other than the plaintiff's vendors, who were interfering with his possession, and prayed that as against them title to the property be adjudged to be in the plaintiff. Compare Adams v. Spivey, 94 Ga. 676 ( 20 S.E. 422); May v. Sorrell, 153 Ga. 47 (3), 53 ( 111 S.E. 810); Citizens Mercantile Co. v. Easom, 158 Ga. 604, 610 ( 123 S.E. 883, 37 A.L.R. 378); Harden v. Weaver, 184 Ga. 652 ( 192 S.E. 384).
2. The suit not being one for specific performance, there was no defect for want of sufficient or proper parties defendant. In this view, no question arises as to whether there would be such a defect if the petition should be construed as an action for specific performance. But see Ellesworth v. McCoy, 95 Ga. 44 (2) ( 22 S.E. 39); Belt v. Lazenby, 126 Ga. 767 (7), 775 ( 56 S.E. 81); Hodges v. Wheeler, 126 Ga. 848 ( 56 S.E. 76); Pierce v. Middle Georgia Land c. Co., 131 Ga. 131 Ga. 99 (2) ( 61 S.E. 1114); Steadham v. Cobb, 186 Ga. 30, 41 ( 196 S.E. 730); Cleaveland v. LaGrange Banking Trust Co., 187 Ga. 65 (4) ( 200 S.E. 137).
3. The petition having shown at least a perfect equitable title in the plaintiff, as against the heir at law whose interest the defendant Duggar claims to have purchased, it thus appears from the allegations that Duggar acquired nothing by such transaction, and that he is a mere trespasser. Accordingly, the petition stated a cause of action against Duggar.
4. As to Farris, it appears that the note and security deed were executed by John E. Quarterman, the plaintiff's step-grandfather, in the year 1928. This was before the plaintiff entered into the alleged contract with his grandmother, Kate Quarterman, and his step-grandfather, John E. Quarterman. There being no allegation to the contrary, it must be assumed that he had notice of this conveyance at the time of his contract. The allegation that this note and security deed were made by John E. Quarterman, and the later averment to the effect that plaintiff denies that said note and deed were executed, are utterly repugnant; and therefore the petition must be construed most strongly against the plaintiff, and as showing that such note and deed were genuine. Adams v. Johnson, 182 Ga. 478 ( 185 S.E. 805); Griffith v. Moore, 185 Ga. 120 (5) ( 194 S.E. 551); Richardson v. Coker, 188 Ga. 170, 175 ( 3 S.E.2d 636); Owen v. S. P. Richards Paper Co., 188 Ga. 258, 260 ( 3 S.E.2d 660). The petition did not show that the note was barred by the statute of limitations, there being nothing to indicate that it was not an instrument under seal. The statute of limitations does not apply to a security deed. Kirkpatrick v. Faw, 182 Ga. 25 ( 184 S.E. 855).
The plaintiff seems to treat the transaction with reference to the buggy as if after the sale by Farris the mere repossession of it would operate to rescind the note and security deed and to extinguish the liability. Compare General Motors Acceptance Corporation v. Coggins, 178 Ga. 643 ( 173 S.E. 841). The petition does not show, however, that the buggy was sold under a contract of conditional sale, so that a seizure and repossession of it by the seller would operate as a rescission of the contract. So far as appears, it was sold and delivered unconditionally, and Farris, the seller, merely took a note for a balance of purchase-money, secured by the deed in question. The allegation that the contract was rescinded appears to be a mere conclusion of the pleader, inconsistent with the specific facts alleged; and accordingly, it did not show a rescission. From what has been said, the court erred in overruling grounds 5 and 6 of the special demurrer attacking paragraphs 21 and 23 of the petition, relating to the claim of Farris.
Grounds of demurrer not set forth in the preceding statement were clearly without merit. No question was raised as to misjoinder of parties defendant.
Judgment reversed. All the Justices concur.