Opinion
18907.
SUBMITTED MARCH 14, 1955.
DECIDED APRIL 12, 1955.
Injunction. Before Judge Davis. Walker Superior Court. January 21, 1955.
Wm. L. Abney, G. W. Langford, for plaintiffs in error.
Frank M. Gleason, contra.
The judgment of the court below overruling each and every ground of the demurrer filed by the defendants was not erroneous for any reason assigned.
SUBMITTED MARCH 14, 1955 — DECIDED APRIL 12, 1955.
Geoffery D. Wilson and his wife, Pernie E. Wilson, and James A. Wilson and his wife, Lillian G. Wilson, brought this suit against Marion Doran, Ruth Doran, and Joe Don Doran, seeking among other things an injunction and damages. The pleadings are quite long and need not be set out fully here. It is sufficient to say that the petition alleged that the defendants had committed and were continuing to commit trespass upon property belonging to James A. and Lillian G. Wilson, for which said plaintiffs prayed damages and injunction. Plaintiffs Geoffery D. and Pernie E. Wilson sought to be relieved from all liability under certain notes executed by them to Marion and Ruth Doran.
It further appears from the petition that the property involved, a laundry establishment, was sold by Marion and Ruth Doran to Geoffery D. and Pernie E. Wilson; and that, as alleged, it was understood that it would be and was resold to James A. and Lillian G. Wilson, who were going to operate the business; that the Dorans accepted a cash down payment and a note from Geoffery D. and Pernie E. Wilson, and a security deed containing a power of sale; that, some time later, the Dorans exercised the power of sale contained in the security deed, advertised the property and had the same sold by their attorney; that the property was purchased by Joe Don Doran, a minor son of Marion and Ruth Doran, for less than was due on the note; that the Dorans then attempted to get the sale confirmed in the Superior Court of Catoosa County, but confirmation was denied and a resale ordered because the terms of the security deed had not been complied with. It is alleged that this purported sale was a fraudulent attempt to deprive the plaintiffs of their equity in the property, and that the whole transaction was done in bad faith and under a pretense of legal claim which the defendants knew was illegal.
It was further alleged that, on the date the purported sale occurred, defendants by force removed and excluded plaintiffs from the place of business, destroyed their records, and took over their business. It is alleged that the defendants are insolvent. The prayers were for damages, injunction, cancellation of the note and security deed, accounting, and discovery.
The defendants filed general and special demurrers to the petition. There are 46 numbered paragraphs in the demurrer with numerous subparagraphs. These will not be set out here. The judge of the court below overruled each and every ground of the demurrer. The exception here is to that judgment.
1. The plaintiffs in error state in their brief that there are five questions presented by the petition and demurrer which must be decided by this court. The case will be dealt with as presented by the plaintiffs in error. The first three questions presented they state as follows: "1. Was the sale void because the real estate was prematurely advertised for sale? 2. Was the sale void because the same was bid in by a minor, who executed his note for the sale price, which sum was less than the amount of the indebtedness admitted to be due on the note and security deed? 3. Was the sale void because of provisions of section 37-608 et seq., Code Ann.?"
As we construe the petition in the instant case, these questions are not presented in the case before us. These questions are based upon an apparent misconception as to what the cause of action is that plaintiffs attempt to set out. The question of whether or not the sale should be set aside has already been decided in the Superior Court of Catoosa County, Georgia. The judgment of that court reads in part as follows: ". . . it appearing that the security deed under which said sale was held contained a provision for the exercising of the option to sell under the power contained in said security deed on default of grantors for sixty days upon monthly payments provided for therein, it appearing such sale was advertised before default of 60 days, the said application of Marion J. Doran and Ruth Doran for such confirmation and approval of the sale held on Aug. 3, 1954, is hereby denied and a resale is hereby ordered." This judgment stands unreversed and can not be collaterally attacked in the manner undertaken in the present action. Whether that judgment is right or wrong is not a question to be decided in this suit, and it will not be considered.
It is contended that the judgment above set out does not set aside the sale, but simply prevents the obtaining of a judgment for the deficiency. We can not agree with this contention. To order a resale because the previous sale was not in accordance with law, can mean nothing except that the previous sale did not amount to a sale at all. It follows there is no merit in these contentions.
2. The fourth question which the plaintiffs in error state will have to be decided by this court is as follows: "4. Were the plaintiffs, James A. Wilson and wife, Lillian G. Wilson, entitled to any relief whatever under the allegations of the petition?" The argument of counsel under this division of the opinion is that the sale of August 3, 1954, under a power contained in the security deed executed by Geoffery D. Wilson and Pernie E. Wilson to Marion and Ruth Doran was a voidable sale and could be voided only by Geoffery D. and Pernie E. Wilson, the grantors in the security deed. This might be true if what were here undertaken were to set aside the sale, and if the contention be true that this was a voidable sale. However, as pointed out in division one of this opinion, the plaintiffs in this case are not trying to set aside a sale; that has already been done in the Superior Court of Catoosa County. But they are seeking, among other things, to recover damages for trespass upon their property and to enjoin a further trespass, and under the allegations of this petition, they are proper parties.
3. Question number five, as stated by the plaintiffs in error, is as follows: "5. Is there a misjoinder of causes of action?" In the instant case, plaintiffs seek damages, injunction, cancellation of a note and security deed, accounting and discovery. While it is true that ordinarily a plaintiff may not seek all these types of relief in a single suit, there are exceptions whenever special equitable reasons appear for permitting it to be done. In the instant case, many equitable reasons appear for permitting the plaintiffs to seek all the relief to which they may be entitled, if any, in a single suit so that all the differences between the plaintiffs and the defendants can be adjusted and all matters of controversy settled and thus avoid a long series of complicated litigation.
It is alleged in the petition that the defendants are insolvent. This has long been an exception to the rule that actions ex contractu and ex delicto may not be joined in a single suit. See Lee v. Lee, 31 Ga. 26 (76 Am. D. 681); Bell v. Ober Sons Co., 111 Ga. 668 ( 36 S.E. 904); Hilton v. Rogers, 152 Ga. 658 ( 111 S.E. 33).
Insolvency is not the only ground for permitting the joining of actions ex delicto and ex contractu. It has been held that, if the remedy at law is not as complete or as effectual as the equitable relief, a mere privilege to sue at law does not deprive equity of jurisdiction. Quitman Cooperage Co. v. People's First Nat. Bank, 178 Ga. 90 ( 172 S.E. 17). In the instant case, the intervention of equity is required so that the rights of all parties to this proceeding may be determined and protected in this suit. It follows there is no merit in this contention.
4. Other questions that are raised or might have been raised by the pleadings in this case are not argued in this court. We have dealt with this case as presented by the plaintiffs in error. All questions not argued in this court will be considered as abandoned. It follows from what has been said above, the judgment of the court below is affirmed.
Judgment affirmed. All the Justices concur.