47 S.E.2d 872 | Ga. | 1948
The petition in this case, in the light of the proffered amendment, was sufficient to withstand a general demurrer, and the trial court erred in disallowing the amendment and dismissing the petition.
The defendants in the court below made an oral motion to dismiss the petition, whereupon, the plaintiffs tendered the following amendment: "That Georgia Savings Bank and Trust Company, holder of the deed mentioned in paragraph four of the petition, has asserted against these plaintiffs its title under its deed, and plaintiffs, to prevent foreclosure by said company, *691
have yielded to the demands of said company by paying to it the sum of $300, as a credit upon said loan to prevent foreclosure thereof." This amendment was objected to by the defendants. The trial court refused to allow the amendment and dismissed the petition. To this judgment the plaintiffs in error excepted.
1. "When a vendee under a warranty deed has fairly and reasonably paid a sum of money to remove an encumbrance which was outstanding, and was a legal and valid lien on the land at the time of his purchase, he may recover the amount thus paid from his vendors." Amos v. Cosby,
Applying the foregoing rulings, it follows that the petition, in the light of the proffered amendment, established the right of the plaintiffs in the court below, upon proof of the facts alleged, to recover from the vendor the amount actually paid on the outstanding encumbrance. True it is, as urged by the defendants in error, the petition prayed for the recovery of $3500, and no facts were alleged which would authorize a recovery in this amount; but the fact that the prayer was for a larger amount than the facts alleged would authorize would not defeat the right of the plaintiffs to recover a smaller amount upon proper proof. *692
"The prayer or demand for relief is no part of the plaintiff's cause of action. The sufficiency of the complaint depends not upon the prayer for relief, but upon the facts pleaded; if those facts entitle the plaintiff to any relief, either legal or equitable, although they may not entitle him to all the relief prayed for, the complaint is not subject to demurrer upon the ground that its allegations are insufficient to state a cause of action." 41 Am. Jur. § 110, p. 366. "A petition which alleges an improper measure of damages can not for that reason be dismissed on general demurrer." James v. Dayton Rubber Mfg. Co.,
For the reasons stated, the judgment of the trial court, refusing to allow the amendment and dismissing the petition, was erroneous.
Judgment reversed. All the Justices concur.