174 Ga. 278 | Ga. | 1932
C. E. McCook and Theodore Hartridge filed their petition against N. A. Avant and W. E. Bartlett. By amendment McCook was stricken as a party. The petition as amended made these allegations: On May 17, 1924, McCook conveyed by deed to E. A. Wimbish described land to secure a debt of $750, bearing interest from date at eight per cent, per annum, and maturing on May 17, 1925. This deed contained a power of sale and an accelerating clause, by which the holder thereof could, at his election, declare the principal of the debt due upon the failure of the debtor to pay any installment of interest, and could sell the land embraced therein after advertisement at public sale. This loan was renewed annually by McCook. On May 3, 1927, McCook conveyed said land to Hartridge, subject to said security deed. Upon the maturity of this loan in 1927, Hartridge procured an extension of the payment of the principal thereof until May 17, 1930. For this extension he paid a commission of $20, and agreed to pay the interest on the loan semi-annually. On June 25, 1929, Mrs. E. A. Wimbish transferred and assigned to Avant all her right, title, and interest in and to this security deed, together with the notes thereby secured. At the time of said transfer one of said interest notes was past due for over one month. On July 27, 1929, there was paid to Bartlett the sum of $50 on the loan of Avant, although at that time there was due only $30.47, so that usury of $19.53 was extorted and collected. Bartlett was the agent of Avant, and authorized to collect said money as such, and did collect the same as agent and attorney of Avant. On August 3, 1929, Avant advertised said land for sale on August 31, 1929, under the above power of sale, upon the ground that the interest installment on said loan was in default. At said sale
Avant demurred generally to the petition as amended, upon the grounds that (a) it does not set forth a cause of action against him, nor does it allege sufficient facts in law to entitle plaintiff to recover against him; (b) it is duplicitous in that it alleges that the property is now in the hands of an innocent purchaser who is protected, and yet it seeks to proceed against defendant for
The court overruled the demurrer, and the defendant excepted pendente lite, and assigns error on that ruling. Avant filed his answer in which he set up no equitable right and did not seek any equitable relief. Pie denied the substantial allegations upon which petitioner relied for relief. The jury returned a verdict in plaintiffs favor for $650. The defendant moved for a new trial on the general grounds and on various special grounds, which was overruled by the court; and to that judgment exception is taken.
Under the above facts has this court jurisdiction to pass upon the assignments of error embraced in the writ of error? If the facts, make a case in equity, this court has jurisdiction. If they do not make such case, the Court of Appeals has jurisdiction. There are no equitable rights asserted by the defendant in his answer; and he seeks no equitable relief. Whether the case is one in equity or not depends solely upon the allegations contained in the petition. Certain allegations of the petition, standing alone, might authorize the plaintiff to have canceled the deed which Avant acquired to the premises in dispute under the exercise of the power of sale contained in the security deed from McCook to Mrs. Wimbish. Plaintiff, however, expressly alleges that he is not entitled to the equitable relief of cancellation and to recover this property, because innocent purchasers have acquired title thereto under mesne conveyances from Avant. For this reason he seeks to recover damages from the defendants. Having expressly disclaimed the right to have this deed canceled, and having expressly prayed in lieu thereof damages, plaintiff does not make in his petition an equitable cause of action. Whether an action is one at law or in equity is determined by the allegations of the petition and the nature of the relief prayed, and not by the designation given to the action by the pleader. If the averments of the petition do not make a case in equity, a prayer for equitable relief would not make the same one in equity. If the facts alleged do
Transferred to the Court of Appeals.