39 S.E.2d 313 | Ga. | 1946
1. The petition of a judgment creditor, which sought to sell the equity of redemption in described land belonging to the defendant in fi. fa., which land was subject to a loan deed that was superior to the petitioner's judgment, for the purpose of satisfying the petitioner's judgment, was defective and subject to demurrer in the following particulars: (a) It did not allege that the petitioner had *260
tendered to the grantee therein the amount represented by the loan deed, nor that the petitioner was insolvent and, hence, unable to tender the same. Code, § 39-201; Dumas v. Tyus,
2. The petition was not subject to special demurrer because it failed to make the grantee in the loan deed a party to the suit. Shepherd v. Armour Fertilizer Works,
3. For the reasons stated above the petition failed to allege a cause of action, and the court erred in overruling the defendant's general demurrer thereto.
Judgment reversed. All the Justicesconcur.