5 S.E.2d 347 | Ga. | 1939
1. Where the allegations of a petition showed that the property levied on was worth many times the amount of the execution, and that it was capable of subdivision in a manner to satisfy the execution, a cause of action for cancellation because of excessive levy was alleged.
2. Where the petition for cancellation of tax deeds to realty shows that defendants have received the rents and profits from the land of a value equal to or exceeding the amount of taxes paid, and an accounting is prayed for, a tender of the amount paid for taxes is not necessary.
3. Where it is not shown that defendant has made valuable improvements, or that procurement of evidence is rendered difficult because of long lapse of time, the action will not be dismissed because of laches.
4. It is not error to overrule special demurrers to allegations of a petition, on the ground that such allegations are mere conclusions, where such conclusions are supported by facts alleged. And where grounds of demurrer are confusing and uncertain, since a demurrer must itself be free from defect, such demurrer will be overruled.
"Petitioner does not know the exact amount, but the rents of said real estate has during said time amounted to more than $100 per month." She is entitled to all the rents and profits which this defendant has received during the past four years from the realty to which she holds a life-estate under her father's will; and as the owner of a one-fifth undivided interest in the other properties described in the petition she is entitled to one fifth of the rents and profits therefrom since the death of her sister, Mrs. Guyton, in May, 1935. While the charter of the defendant realty company was applied for by M. E. Kilpatrick, T. J. Long, and Welborn Cody, they were only acting for D. F. McClatchey Sr., now deceased, his son D. F. McClatchey Jr., Dr. Herbert Reynolds, and Dudley Reynolds, who in fact originated the company and who have owned and controlled the company ever since it was formed. M. E. Kilpatrick was acting as agent for the last-named parties when he obtained from the City of Marietta deeds to the properties described in the petition, and when he deeded the properties to the defendant realty company. D. F. McClatchey Sr., Dr. Herbert Reynolds, and Dudley Reynolds were grandsons of petitioner's father, and at the time the company was formed and when the deeds to the property were obtained from M. E. Kilpatrick and the City of Marietta they had full knowledge of the provisions of the will of petitioner's father, the interest held by petitioner, her sister and the other heirs, and of the value of the properties involved. The sole officers of the defendant realty company are D. F. McClatchey Jr., Herbert Reynolds, and Dudley Reynolds. The petitioner has no adequate remedy at law, and equity should take jurisdiction of the case to prevent a multiplicity of suits. Some of the property involved has recently been levied on and is about to be sold by the sheriff of Cobb County under stated tax executions for which neither the petitioner nor her property is liable. The prayers were (1) that the sheriff be enjoined from selling the property levied on under the stated tax executions; (2) that the realty company be enjoined from selling or changing the status of the property; (3) that the levies and sales and the deeds made in pursuance thereof by Cobb County, the City of Marietta, and M. E. Kilpatrick be decreed null and void and ordered canceled of record; (4) that the plaintiff have judgment against the realty company, for the benefit of herself and the other *150 owners of the property, in the amount of the rental value of the properties during the four years preceding the filing of this complaint; (5) for appointment of a receiver to manage and sell all of the real estate involved, except the tract devised to the plaintiff for life; and (6) for general relief.
By amendment it was alleged that the sales described in the petition had never been completed by payment of the purchase price, and that by reason of this fact the sales and deeds made in pursuance thereof were void and the twelve-months period of redemption had not begun to run. The following prayer was added: "That petitioner have an accounting with the defendant Marietta Realty and Development Company, and with any other defendant in the said cause that this court of equity may determine is entitled to an accounting; and that the proceeds from the sale of the real estate in question, and the rents therefrom, as prayed in the original complaint, be distributed and disposed of, as prayed in the original complaint as amended, as the court may direct." By order of the court the persons named in the petition as owning four fifths of the property to which the petitioner claimed one fifth interest were made parties to the suit. Other interested parties were allowed to intervene. From the exhibits attached to the petition it appears that the fi. fas. issued for street paving assessments levied on the properties involved contained the following language: "You [the marshal] are hereby commanded to levy on the goods and chattels, lands and tenements, of Mrs. C. A. Guyton, and especially the following described property [describing the same], or so much thereof as shall be sufficient to make the sum of" the assessment, etc. The realty company demurred on the grounds, (a) that the petition fails to state a cause of action for equitable relief; (b) that the petitioner is barred from recovering, because of laches; and (c) that the petitioner has not offered to do equity by making a tender of the amounts paid by the purchasers at the tax sales. This defendant also urged several grounds of special demurrer, which are sufficiently stated in the opinion which follows. The judge overruled all grounds of demurrer, and the defendant excepted.
1. The allegations of the petition were sufficient to show that the sales were void for excessive levy.Williams v. Forman,
2. "He who would have equity must do equity, and give effect to all equitable rights in the other party respecting the subject matter of the suit." Code, § 37-104. Ordinarily, before one would be entitled to have a tax sale set aside and deeds executed in pursuance thereof canceled on the ground that the levy of the execution was excessive, he must tender to the purchaser at such sale the amount paid by such purchaser, with interest. Clark v.C. T. H. Cor.,
3. The petition was demurred to on the ground that the complainant was guilty of laches, for lack of diligence in filing this suit. "Equity gives no relief to one whose long delay renders the ascertainment of the truth difficult, though no legal limitation bars the right." Code, § 37-119. However, one in possession of land is not chargeable with laches in failing to bring suit to cancel deeds. Smith v. Burrus,
4. The plaintiff in error filed special demurrers to several paragraphs of the petition, on the ground that certain allegations therein were mere conclusions of the pleader. The paragraphs attacked stated, in substance, that by reason of certain facts stated above the tax sales and the deeds made in pursuance thereof were void. The conclusions were supported, at least in part, by the facts alleged, and the court did not err in overruling these grounds of demurrer. See Western AtlanticRailroad Co. v. Roberts,
Judgment affirmed. All the Justices concur.