158 Ga. 285 | Ga. | 1924
The exception presented by this bill of exceptions is to the dismissal of a petition and the amendment thereto, which is somewhat remarkable for its length and the unusual' nature of some of its verbiage. The demurrer attacks the petition as a whole. If the petition is unusually verbose, the demurrers are unusually concise, and no effort is made to put the finger upon any specific point of weakness in the armor of the plaintiffs. The demurrers must necessarily be treated as general,
The petition alleges that on December 11, 1920, G. A. Linder owned and was in possession of a tract of land in Toombs County, Georgia, “in the 1536th dist. G. M., bounded on the north by lands of Fred O’Neal estate, Little Rockey Creek: on the east by lands of W. G. Dickerson and on the west by lands of W. II. Odum Estate, being more particularly described by metes and bounds in the plat recorded in Book 2, pages 362, 363, in the office of the clerk of the superior court of said county, containing three hundred and 27 and 3/10 acres, more or less.” On that day he borrowed $5,775 from Pearsons-Taft Land Credit Co., and to secure this loan executed a deed under the provisions of § 5306 et seq. of the Civil Code, receiving from the company its bond to reconvey title. Being indebted to E. M. Wimberly in the sum' of $1,636.35, to secure this indebtedness he executed to him, on December 12, 1920, a deed conveying the described tract of land, subject to the loan deed of the Land Credit Co. aforesaid, and contemporaneously with the execution of this deed Wimberly made Linder a bond for title to reconvey the land upon payment of the indebtedness alleged to be $7,333, including the $5,775 which Linder had borrowed from the Land Credit Co. Later Wimberly went to Linder’s home while he was absent, and asked Mrs. Linder
Though the foregoing allegations set forth a very unusual statement of facts, we do not think the statements are unintelligible; and admitting them to be true, as they must be admitted for the purposes of demurrer, they set forth a wrong which entitled the plaintiff G-. A. Linder to some remedy. Further on in the petition there is stated a sufficient reason why Duncan should be made a party defendant. It is alleged in substance that Wimberly has mad<9 and executed a deed to Duncan to the premises described
In the amendment it is further alleged that all the alleged indebtedness to Wimberly had been discharged by the payment of $1,000 in cash, realized out of the loan from the Land Credit Co., and the petitioners averred continued readiness to pay the Land Credit Co. the $5,775 which had been included in the $7,333 mentioned in the deed to Wimberly. The petition
We come now to the third ground of the demurrer, in which it is alleged that the “petition fails to disclose such a state of facts as would entitle tlie plaintiff Queen Linder to relief sought.” It may be that this ground of the demurrer was intended to set up that as to Queen Linder there is a misjoinder of parties and causes of action, and it may or may not be true that the complaint is that the petition was insufficient; but the demurrer is insufficient if such was the purpose. This court has several times held that a demurrer upon the ground of misjoinder is a special demurrer. Reese v. Reese, 89 Ga. 645 (3) (15 S. E. 846); Rusk v. Hill, 117 Ga. 722 (45 S. E. 42); Ga. R. & B. Co. v. Tice, 124 Ga. 459 (52 S. E. 916, 4 Ann. Cas. 200). The demurrer as pleaded is fatally de-fective as a special demurrer. The statement that the petition as a whole fails to disclose such a state of facts as would entitle
We think the learned trial judge erred in sustaining the general demurrer. Under the allegations of the petition, assumed to be true, the plaintiffs’ tree appears to contain good fruit. Even if the fruit be somewhat concealed by a superabundance of leaves, it should not have been cut down with the ax general demurrer, but rather have been pruned, if necessary to the ripening of the fruit, with the pruning-knife special demurrer.
Judgment reversed.