Opinion
22342.
SUBMITTED JANUARY 14, 1964.
DECIDED MARCH 5, 1964.
Equitable petition. Laurens Superior Court. Before Judge Ward.
C. C. Crockett, Paul J. Jones, for plaintiffs in error.
E. L. Stephens, Jr., contra.
The petition failed to set forth a cause of action; the trial judge erred in overruling the defendants' general demurrer.
SUBMITTED JANUARY 14, 1964 — DECIDED MARCH 5, 1964.
Moody Oliver instituted an equitable action against C. C. Crockett, a resident of Laurens County, Charles M. Smith and the latter's wife, Hazel Oliver Smith, in the Superior Court of Laurens County. The petition alleged it was brought on behalf of the plaintiff and others similarly situated. It did not designate or disclose who "the others" were.
The petition alleged in substance: that Charles M. Smith and Hazel Oliver Smith were nonresidents but are now within Laurens County and subject to the jurisdiction of the court; that in 1956 Mrs. Jennie B. Oliver executed a security deed to certain described lands to the Morris State Bank; that Mrs. Oliver made a will before her death on July 10, 1957, giving her husband J. B. Oliver, Sr., a life estate in the described property [However, a copy of the will of Mrs. Jennie Oliver, apparently valid, is attached to the petition as an exhibit. The will devised the entire estate of testatrix to J. B. Oliver, Sr., in fee simple.]; that J. B. Oliver, Sr., died on November 12, 1957, leaving an illegal and invalid will which attempted to devise the described property to Hazel Oliver Smith to the exclusion of the other heirs; that the purported will named C. C. Crockett as executor; that on the death of J. B. Oliver, Sr., the deed to secure debt had never been paid, there being a balance of some $785; that on January 21, 1960, Charles M. Smith procured a transfer of the deed, with the property as security, from the Morris State Bank to him; that Crockett and Smith by connivance advertised the lands for sale as by law provided.
The petition further alleged: that at the time the property was auctioned, the plaintiff bid the sum of $4,650, Crockett announced the property was sold to him and that the plaintiff advised Crockett to prepare the deed and "he would pay the amount of his bid upon execution of a deed"; that, later in the same day, the plaintiff requested a deed from Crockett stating that "he had money and did tender money in payment of said deed"; that Crockett has refused to execute a deed to the plaintiff and on the contrary caused a deed to be executed in the name of Mrs. Jennie Oliver by her attorney in fact, Charles M. Smith, to Hazel Oliver Smith for the sum of $4,600 which sum was less than the amount bid by the plaintiff; that the defendants connived by causing the foreclosure on Mrs. Oliver's property, by purchasing the deed to secure debt from the Morris State Bank, by foreclosing before the probate of the purported will, by refusing to execute a deed to the plaintiff after he had made the high bid, and by refusing to convey the property back to the estate of Mrs. Oliver when tender of the amount paid by the defendant Charles M. Smith to the Morris State Bank was made immediately after the transfer from the bank to Smith; that the plaintiff is without adequate remedy at law to prevent the defendants from perfecting their scheme to sell and take possession of the described property and thereby deprive the plaintiff and other heirs of the estate of J. B. Oliver, Sr., and Mrs. Jennie Oliver of their inheritance, as expressed by Jennie Oliver in her will; that unless the defendants are permanently enjoined from executing the deed to a third party, the property will be placed beyond the courts and the reach of the plaintiff; that the defendants by connivance and refusal to execute a deed to the plaintiff "are attempting to defeat the interest of the heirs of Mrs. Minnie [sic] Oliver and J. B. Oliver in said estate by refusing to probate will of J. B. Oliver in solemn form and by refusing to execute deed to Moody Oliver now hold a deed under the power of sale contained in the deed to secure debt from Mrs. Jennie Oliver to Morris State Bank"; that Crockett holds no money as executor of the estate of J. B. Oliver, Sr., and unless the defendants are enjoined from disposing of the property it will be placed beyond the reach of this court, and the interest of the heirs of J. B. and Jennie Oliver will be defeated.
Paragraphs of the petition allege the defendants conspired to probate the will of J. B. Oliver, Sr., and that the same was refused probate. The prayers of the petition are: that the defendants be restrained and enjoined from selling or otherwise hindering the plaintiff from remaining in possession of the property; that the defendants be permanently restrained and enjoined; that the deed from Charles M. Smith to Hazel Oliver Smith be canceled and declared null and void; that upon acceptance of the sum paid by Charles M. Smith to the Morris State Bank for transfer of the security deed of Mrs. Jennie Oliver, Charles M. Smith execute a deed conveying the property back to the estate of J. B. Oliver; that "all other and further right be granted and allowed in the premises, as provided by law."
While the averments of the petition are vague as to the circumstances under which the deed from Charles M. Smith to Hazel Oliver Smith was made, except to allege it was executed on the same day that the sale occurred, it is fairly inferable from the facts set forth that Mrs. Smith bid the property in at the sale, particularly since the security deed did not empower the holder of the same to sell the property at private sale.
The petition relates that the plaintiff is in possession of the premises in controversy but omits any averments as to how he came into possession or by what right he holds possession.
The defendants filed general and special demurrers to the petition. The trial judge overruled the demurrers; the defendants excepted and the case is here for review.
1. The petition bases the plaintiff's right to the relief prayed upon two theories: first, that the plaintiff acquired such interest in the house and lot formerly owned by Mrs. Jennie Oliver by reason of having submitted the highest bid at a public sale when the property was sold under a security deed originally made by Mrs. Oliver to the Morris State Bank and transferred to Charles M. Smith, as entitled the plaintiff to remain in possession of the house and lot and to obtain an injunction to restrain interference with his possession; secondly, that he was entitled, as an heir at law of Jennie and J. B. Oliver, deceased, together with other heirs at law of the decedents, to have the deed made by Charles M. Smith, as attorney in fact of Mrs. Oliver, to Hazel Oliver Smith set aside.
2. The petition relates Mrs. Jennie Oliver predeceased her husband, J. B. Oliver, Sr., to whom by a valid will she bequeathed and devised her entire estate in fee simple. Hence, the plaintiff was not her heir at law, and inherited no interest in the property involved in the case from her.
3. The petition affirmatively disclosed the plaintiff was not the sole heir of J. B. Oliver, Sr., and hence he did not as his heir at law have the right to bring the suit to set the deed made by Charles M. Smith, as attorney in fact of Mrs. Oliver, to Hazel Oliver Smith aside, or for other relief. Dupon v. McLaren, 63 Ga. 470, 471 (2). See also Sowell v. Sowell, 212 Ga. 351 ( 92 S.E.2d 524). In Kenner v. Kenner, 214 Ga. 381, 383 (3) ( 104 S.E.2d 896), this court held: "`Where ... the trial court sustains a general demurrer to the petition for any reason, and it appears that there is the want of an essential party, such as the grantor or the grantee of a deed sought to be canceled, this court will not do a vain thing and reverse the judgment, on the theory that the failure to name an indispensable party can be reached only by special demurrer, since in such a case no valid judgment granting the relief of cancellation could possibly be rendered.' Sowell v. Sowell, 212 Ga. 351, 356 ( 92 S.E.2d 524). Likewise, since all the heirs of a grantor must be parties to a petition to cancel his deed, where, as here, a general demurrer to a petition for cancellation, brought by only one of the heirs and the widow of the deceased grantor, is overruled, such judgment will not be affirmed on the theory that failure to join an indispensable party can be reached only by special demurrer, since in such a case no valid judgment granting the relief of cancellation could possibly be rendered."
4. The plaintiff acquired no interest or right in the premises in dispute by reason of having submitted the highest bid for the same when it was sold under the power of sale contained in the deed to secure debt because, according to the petition, he did not pay or tender the amount of his bid to the person conducting the sale.
There is an averment of the petition that the plaintiff Moody Oliver was the highest and best bidder at the sale, at the time the property was auctioned the plaintiff bid the sum of $4,650 and "the defendant C. C. Crockett did announce that said property had been sold to Moody Oliver, and that immediately Moody Oliver did advise the said C. C. Crockett to prepare the deed and that he would pay the amount of his bid upon execution of a deed."
This offer was clearly insufficient as an allegation of tender. It is held in Martin Smith v. Thompson, 141 Ga. 31 (2) ( 80 S.E. 318): "An offer to pay the purchase-price on delivery of a properly executed deed is not an unconditional tender. Terry v. Keim, 122 Ga. 43 ( 49 S.E. 736). See also DeGraffenreid v. Menard, 103 Ga. 651 ( 30 S.E. 560); Elder v. Johnson, 115 Ga. 691 ( 42 S.E. 51); Grace v. Means, 129 Ga. 638 ( 59 S.E. 811)."
The averment of the petition that the plaintiff later on the same day (the day of the sale) informed the party conducting the sale that he had money and tendered money in payment for the deed was insufficient to allege a valid tender. The holder of the security deed was entitled to payment in the amount of the plaintiff's bid, Smith v. Pilcher, 130 Ga. 350, 355 ( 60 S.E. 1000), Pope v. Thompson, 157 Ga. 891 ( 122 S.E. 604), Lively v. Munday, 201 Ga. 409, 418 ( 40 S.E.2d 62, 173 ALR 1295), and the alleged tender of money in no definite amount was not a tender of the amount of such bid.
In short, the attempted allegation of tender was too vague and indefinite to show the facts necessary to constitute a valid tender of any particular amount. It is held in McKown v. Heery, 200 Ga. 819, 821 ( 38 S.E.2d 425): "Even had the plaintiff alleged that he made `a tender,' or `an unconditional tender,' of the purchase-money, these allegations standing alone would not suffice, as against a demurrer, for it is incumbent upon the pleader to allege facts constituting a legal tender."
Since the petition set forth no right of the plaintiff to bring the suit, the trial judge erred in overruling the general demurrer.
Judgment reversed. All the Justices concur.