20 S.E.2d 29 | Ga. | 1942
1. A petition alleging the plaintiff to be the equitable owner and in possession of certain described premises under contract of purchase with the defendant, and alleging that the defendant is seeking to oust him from possession by dispossessory warrant on the claim that he is a tenant of the defendant, holding over, in which the plaintiff seeks a decree of specific performance of his contract, offering to pay the amount due thereon and seeking at the same time injunction against such eviction, states a cause of action in equity.
2. Where in such a case the plaintiff, having paid a part of the purchase-price and having made substantial improvements on the property so held, surrendered to the defendant the bond for title under which he held the property upon the express understanding that it was for the sole purpose of enabling the defendant to procure a loan, and that warranty deed would be made to the plaintiff upon the payment of the balance of the purchase-price including outstanding indebtedness, the surrender of the bond for title did not render the plaintiff's petition subject to dismissal on motion, it not appearing that the character of the plaintiff's possession as owner was changed in such transaction to that of tenant.
There was no demurrer to the petition. The judge dismissed it on motion, as stating no cause of action.
A tenant has an adequate remedy at law by which he may resist or contest a dispossessory-warrant proceeding (Code, § 61-303), and equity will not interfere with such regular process. Johnson v. Thrower,
In Patterson v. Barron,
Judgment reversed. All the Justices concur.