182 Ga. 844 | Ga. | 1936
Lead Opinion
After the removal of the Cherokee Indians from northern Georgia, more than eighty years ago, the-early settlers of Catoosa County erected the “Old Stone Church” out of
1. A question in this ease, decided on general demurrer, is whether the petition alleged a cause of action for specific performance by a purchaser of land at public sale conducted by trustees of a church. The trustees were authorized to sell “at public outcry to the highest and best bidder for cash.” The purchaser was the highest bidder, and he made a tender; but the pivotal question is, did he make it in conformity to the power of sale conferred upon the trustees in regard to time of payment? On this point the petition failed to state the time of tender, and is to be construed most strongly against the pleader.
2. The allegations of fact bring the case within the principle ruled in Dwelle v. Blackshear Bank, 115 Ga. 679 (42 S. E. 49), where it was held: “A prospective purchaser at á sale of prop
3. The petition alleged that “No other sale of said property has been authorized by the quarterly conference of said church.” Also, that, after refusal to deliver the deed to the purchaser at the public sale, two of the three trustees of the church signed and delivered a deed to a third person, “without public sale and without any right or lawful authority on the part of said trustees to make any conveyance,” which is subject to be recorded and is operative as a cloud upon the title of petitioner as a member of the church.
(a) The allegation of interest of petitioner as a member of the church was sufficient to authorize him to sue for cancellation of the deed. See Mayor &c. of Macon v. Dasher, 90 Ga. 195 (16 S. E. 75); Harris v. Brown, 124 Ga. 310 (6) (52 S. E. 610, 2 L. R. A. (N. S.) 828).
(b) The allegation as to want of authority in the trustees to execute the deed was sufficient to show that it was void and subject to cancellation as a cloud on title.
4. It was alleged that one of the trustees in collusion with the grantee “is now in possession of ‘Old Stone Church’ property, is using the same for commercial purposes, and threatens to convert the ‘Old Stone Church’ building into a tourist camp, and place therein beds and other furnishings to accommodate the traveling public, . . all of which is and •frill continue to be a sacrilege and a desecration.” While injunction may not be substituted for complaint for land, it is an appropriate remedy to prevent an alleged trespasser in wrongful possession of a building used as a church from desecrating by diverting it to private uses.
5. The petition having alleged a cause of action for cancella
6. The judgment overruling the general demurrer to the petition is reversed in so far as it relates to the allegations and prayers for specific performance. The judgment is affirmed in so far as it relates to the allegations and prayers for cancellation and injunction.
The plaintiffs in error having obtained a substantial modification of the judgment upon which error was assigned, the cost of bringing the case to the Supreme Court is taxed against the defendants in error.
Judgment affirmed in part and reversed in part.
Concurrence in Part
dissenting in part and concurring in part. If
the tender was not made in time, it was refused for a different and invalid reason; and therefore the delay was waived. Hence I dissent from the ruling in regard to tender, and from the judgment to the extent that it reverses the judgment of the trial court. Fraser v. Jarrett, 153 Ga. 441 (3) (112 S. E. 487). Furthermore, the exception is to the overruling of a general demurrer to a petition; and since the petition stated a cause of action for a part of the relief sought, the judgment overruling the demurrer which attacked the petition as a whole should be unqualifiedly affirmed. Such has been the practice. Blaylock v. Hackel, 164 Ga. 257 (5) (138 S. E. 333); Hines v. Wilson, 164 Ga. 888 (139 S. E. 802); Hogan v. Cowart, 182 Ga. 145 (3, d) (184 S. E. 884).