Opinion
15942.
OCTOBER 16, 1947. REHEARING DENIED NOVEMBER 14, 1947.
Equitable petition. Before Judge Moore. Fulton Superior Court. June 20, 1947.
E. L. Douglas, for plaintiff.
Mitchell Mitchell, and George C. Mitchell, for defendant.
1. Where a bond for title has been given, and the vendee defaults in the payment of a purchase-money note, the vendor has the right to reduce the purchase-money note to judgment, file a deed, and sell the land; or, where time is made the essence of the contract, rescind and bring ejectment; or, if the premises be vacant, re-enter and take possession.
2. An action in ejectment against one not in possession, to evict one in possession who is not a party to the cause, fails to state a cause of action.
3. The court having properly dismissed the petition as failing to state a cause of action, it is unnecessary to pass on the questions raised by special demurrer.
No. 15942. OCTOBER 16, 1947. REHEARING DENIED NOVEMBER 14, 1947.
E. L. Douglas brought suit in the Superior Court of Fulton County against George Vourtsanis. So far as material here, the petition alleged: The plaintiff agreed to sell to the defendant certain realty located in Fulton County and known as No. 170 Whitehall Street, in the City of Atlanta, for $6000. A down payment of $2000 was made, and a note, which was to be paid by installments of $50 on the 15th of each month beginning April 15, 1946, with interest at 7 percent per annum payable semi-annually, was given for the balance. Time was made the essence of the contract. The defendant also agreed to pay all taxes, including those for 1946, on the property. The plaintiff executed and delivered to the defendant his bond for title obligating himself to convey the realty by sufficient deed on the payment of the note, with its accrued interest. The installments for the period from April to October, inclusive, and $136.35 as interest for the six-months period, were paid. The defendant had paid none of the installments since October 15, 1946. The property was in the possession of and occupied by two tenants of the defendant. On March 3, 1947, the plaintiff served the defendant with notice that he had rescinded the contract because of a failure to pay the past-due installments and taxes. The defendant demanded repayment of the full amount which he had paid under the contract, but refused to deduct any amount for rent or damage which he had caused the plaintiff by the litigation instituted by the defendant. The petition refers to certain litigation filed by the defendant against the plaintiff respecting their contract of sale, but no copy of the same was attached, and the allegations of the petition do not clearly state the character of same; however, the plaintiff claims that he has been damaged in some unnamed amount because in that litigation the defendant was "stubbornly litigious." Besides for process and general relief, the plaintiff prayed: (1) that an order be granted directing the tenants of the defendant to surrender possession of the land in controversy to him; (2) that he be permitted to deduct from the amount which the defendant had paid as purchase-money all damage which the defendant had caused him by the litigation stubbornly filed against him; and also all rent from March 14, 1946, which was the date of the bond for title, to March 3, 1947 — the date he gave the notice of rescission, and double rent from March 3, 1947, to the date of judgment.
The petition was demurred to generally as failing to state a cause of action and specially as being multifarious. The court sustained the demurrers and the exception is to that judgment.
1. Where one agrees to sell land to another for a stated amount, receives a part of the purchase-price, accepting a note for the balance, and executes and delivers a bond for title obligating himself to convey good and sufficient title therefor on the payment of the note, the relation created between the parties is similar to that of vendor and purchaser. Lytle v. Scottish American Mortgage Co., 122 Ga. 458 ( 50 S.E. 402); Gibson v. Alford, 161 Ga. 672 ( 132 S.E. 442); Richardson v. Johnson, 143 Ga. 213 ( 84 S.E. 543); Wheeler v. Layman Foundation, 188 Ga. 267 ( 3 S.E.2d 645). In such a case, upon default by the vendee in the payment of the balance of the purchase-price, the vendor has the right to (1) stand on his contract and reduce the purchase-money note to judgment, file a deed, and sell the land; (2) or, where time is the essence of the contract, rescind and bring ejectment; or (3) if the property be vacant, re-enter and take possession. Alston v. Wingfield, 53 Ga. 18; McDaniel v. Gray, 69 Ga. 433, 435; Dukes v. Baugh, 91 Ga. 33 ( 16 S.E. 219); Atlanta, Knoxville Northern Ry. Co. v. Barker, 105 Ga. 534 ( 31 S.E. 452); Wimpee v. Burt, 148 Ga. 418 ( 96 S.E. 993); Kite v. Vickery, 153 Ga. 304 ( 111 S.E. 904); Wheeler v. Layman Foundation, supra.
2. The sufficiency of the allegations of the petition to state a cause of action is challenged by the demurrer. As we construe the petition, the plaintiff has elected to rescind the contract and bring ejectment against one not shown to be in possession of the land in controversy. One of the prayers contained in the petition is that two named persons, not parties to the suit, be ordered to surrender possession thereof to the plaintiff as the true owner. The purpose of ejectment is to evict one from realty who wrongfully withholds possession from the person legally entitled thereto. Ejectment must be commenced against the person in possession. Rogers v. Bell, 53 Ga. 95. In that case, Judge McCay said: "The tenant — the actual tenant — in possession, is the proper defendant in an action of ejectment. He is the adverse holder to the plaintiff, and he has a full right to treat him as the person keeping him out of his land." The allegations of the petition here affirmatively show that the premises involved are occupied by two named persons, referred to as the tenants of the defendant. In such circumstances does the petition here, when considered on demurrer, show a cause of action in ejectment against the defendant? We think not. The relief actually sought is against persons not parties to the cause. Where the premises are occupied, the person in actual occupation or possession is in all cases an indispensable party. The rule seems to be well settled in this State, both in the fictitious form and in the statutory action for land, where the premises are actually occupied by a tenant, an action can not be maintained against the landlord without joining the tenant. Ralston v. Dover, 36 Ga. 611; Blalock v. Newhill, 78 Ga. 245 ( 1 S.E. 383); Bower v. Cohen, 126 Ga. 35 ( 54 S.E. 918); 28 C. J. S. Ejectment, § 52.
The petition here, having been brought in ejectment against one not in possession, but to evict the actual occupants who are not parties to the suit, failed to state a cause of action, and the court did not err in sustaining a demurrer raising that question.
3. The court having properly sustained the general demurrer and dismissed the petition as failing to state a cause of action, the questions raised by special demurrer will not be considered.
Judgment affirmed. All the Justices concur, except Wyatt, J., who took no part in the consideration or decision of this case.