160 Ga. 691 | Ga. | 1925
On March 1, 1916, J. T. Pope, now deceased, executed to W. N. Leitch, of Dodge County, a security deed conveying certain real estate in the City of Dublin, for the purpose of securing certain indebtedness. Subsequently W. N. Leitch died, and his widow, Mrs. Louise Leitch, qualified as the executrix of his last will and testament. On April 19, 1917, J. T. Pope- executed to Mrs. Louise Leitch a security deed conveying certain real estate in Dublin for the purpose of securing certain indebtedness. After
Two questions are for determination in this case. The first is whether the charter of the City of Dublin provides an adequate remedy for the defendant in a case like the present. It is insisted that there is a complete remedy provided by affidavit of illegality. It will be observed that the fi. fas. were not issued against Mrs. Leitch, the plaintilf in error, but were issued against J. T. Pope, who executed to Mrs. Leitch a deed to the property in controversy to secure a certain indebtedness owing by Pope to her. This court has held in more instances than one that an affidavit of illegality
Having held that an affidavit of illegality is not an available remedy in a case like the present, but that an equitable petition for injunction is an available remedy, has Mrs. Leitch, the plaintiff, made out such a case as would entitle her to an injunction? The record shows that the City of Dublin under its charter had the right and authority to pave its streets and to assess the cost of the paving to the abutting-property owners. It also provides for a notice to the property owner. The city adopted an ordinancé providing for a notice and hearing. In obedience to the notice served upon him under the city ordinance, J. T. Pope came before the council and entered into an agreement for the pavement of the street in accordance with the ordinance adopted by the city, and agreed to pay two thirds of the cost of the paving, and to withdraw a previous suit for injunction filed against the city. Pope executed deeds to the property in controversy which abutted on the street to be paved, to the Leitches to secure an indebtedness due them. They were, therefore, not the true owners of the property, but had only an equitable title thereto. In the view we take of this case only the true owner of 'the property is entitled to an injunction in a case like the present. In 25 R. C. L. 165, § 77, if is said: “Mortgagees and other lienholders, or persons simply having such interest in the property that they may possibly be affected by the enforcement of a special assessment against it, are
In the above view it does not matter whether Mrs. Leitch, who was a mere lienholder, was served with notice or not. The fact that Mrs. Leitch subsequently purchased the property at receiver’s sale would not affect the result reached above; for she purchased subsequently to the proceedings' instituted by the city to pave the street. We are therefore of the opinion that the court did not err in dissolving the temporary restraining order and refusing the injunction. Judgment affirmed.