Pope v. Thompson, 157 Ga. 891

Pope v. Thompson

157 Ga. 891

Ga.

1924

Check Treatment

Russell, C. J.

(After stating the foregoing facts.) We think the learned trial judge erred in sustaining the defendants’ demurrer and dismissing the petition filed by the plaintiff. The grounds of the demurrer appear in the statement of facts.

It is insisted that the plaintiff could not meet or attack the dispossessory warrant against her without giving a bond, and that the poverty of the plaintiff and her inability to give bond present no ground for equitable relief by injunction. The cases cited by counsel for defendants in error apply only where the relation of landlord and tenant exists. Where the petition otherwise sets forth a good cause of action, and alleges facts which negative the existence of the relation of landlord and tenant, and alleges that from petitioner’s poverty she is unable to give bond to arrest the dispossessory warrant, the petition is sufficient to prevent eviction under the dispossessory warrant. Contrary to the insistence of the defendants in error in this casе, Chief Justice Lochrane, in Worthy v. Tate, 44 Ga. 152, in a well-reasoned opinion points out a distinction in the method of arresting a dispossessory warrant by giving bond and making the counter-affidavit, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and arresting it in equity without such bond when .there are grounds of relief available to a petitioner which are cognizable only in a court of equity. In Bell v. Weyman, 99 Ga. 273 (25 S. E. 636), this сourt held that it was error to dismiss, on general demurrer a petition in which the facts alleged were similar to those of the case at bar. The allegation of Bell, *895upon which, the prayer for injunction was based, that* “he is poor and cannot giye the bond and-security required by law to arrest the proceedings to dispossess, and therefore has no legal remedy to prevent the execution of the dispossessory proceedings,” was substantially identical with thе allegation upon that point in the petition before us; and the prayer to avoid the deed is substantially the same in this case. That one claiming under an independent title may arrest a dispossessory warrant by a petition for injunction, in which is set up her claim of title, legal or equitable, and wherein it is alleged that on account of poverty the petitioner is unable to give bond, is also held in the cases of Gilmore v. Wells, 78 Ga. 197, and Brown v. Bonds, 125 Ga. 833 (54 S. E. 933). In the instant case the remedy at law, even if the рetitioner had been able to give bond, would fall far short of affording the complainant (under other allegations contained in the petition, which ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍for the purposes of general demurrer must be considered as a whole) full and adequate relief; so it seems plain that the action could not be dismissed upon the first ground of demurrer as stated.

It is insisted that the petition is fatally defective, because a tender of the amounts due Thompson had not been made. In our opinion it is not necessary that there be an allegation of a tender of the amount due, when the allegations of the petition as a wholе are considered. In the first place, it is alleged in the petition that the agreement with Thompson was rescinded before he ever paid Mrs. Yan Dyke аnything. This being true, the petitioner owed Thompson nothing and was not bound to tender anything to him. However, it is contended that the contract with Thompson being in writing it could nоt be rescinded by oral agreement. This contention is not well founded. Executory contracts for the sale of land may be rescinded by mutual consent of thе parties, either by novation or simple agreement, where they continue to occupy their relation; and the agreement may be in parol аs well as in writing. 39 Cyc. 1355. In this ease the contract between Thompson and the plaintiff had not been acted upon, and the latter was in possession of the land contracted to be sold to Thompson at the time and has been ever since. Thompson had paid Mrs. Yan Dyke nothing, and did not do so for several months, whеn he attempted to buy the land for himself independently of the agreement with the plaintiff. In Crutchfield v. Dailey, 98 Ga. 462 (25 S. E. 526), Mr. Chief *896Justice Simmons, delivering the opinion of the court, quoted approvingly, “While a valid executed contract cannot be discharged by a simple agreement, but only by performance, by release under seal, or by an accord and satisfaction, one that is executory, that is, one that has not been acted upon, may be discharged by an agreement of the pаrties that it shall no longer bind either of them. The consideration on the part of each is the other’s renunciation.” Citing 21 Am. & Eng. Enc. Law, 68, and cit. Bishop, Contracts, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍§ 813 et sеq.; § 68; McCreery v. Day, 6 N. Y. Supp. 49; same case affirmed, 119 N. Y. 1 (23 N. E. R. 198); Morrill v. Calhoun, 82 Ill. 626; Kelly v. Bliss, 54 Wis. 187 (111 N. W. 488); Lynch v. Henry, 75 Wis. 631 (44 N. W. 837). See also 6 R. C. L. 922, § 306; Canal Co. v. Ray, 101 U. S. 522. The requirement that the rescission should be clearly and satisfactorily proved goes rather to the evidence introduced on the trial thаn to the sufficiency of the petition to withstand a general demurrer. As will appear from the statement of facts, the contract between the plaintiff and Thompson was executory — could not become executed until Thompson paid Mrs. Yan Dyke, and it is alleged that this had not been done at the time of the agreement to rescind; nor, according to the allegations of the petition, does the deed which the plaintiff gave to Thompson, stand in the way of a rescission, because it is alleged that it is void on account of usury, because prior to the act of 1916 (Acts 1916, p. 48) all deeds given to secure dеbts which were infected with usury were void, and “a deed absolute in form may be shown by parol evidence to have been intended as security only where the grantee has not taken possession of the property.” Askew v. Thompson, 129 Ga. 325 (2) (58 S. E. 854); Lowe v. Findley, 141 Ga. 380 (81 S. E. 230); McNair v. Brown, 147 Ga. 161 (93 S. E. 289); Hand v. Matthews, 153 Ga. 75 (111 S. E. 408). Except as against a special demurrer, the allegations as to usury were sufficient, and the defects in the general statement could not be taken advantage of by a general demurrer to the petition as a whole. Under the Civil Code (1910), § 3442, “All titles to property made as a part of an usurious contract, or to evade the laws against usury, are void.” And the transaction here involved is not affected by the subsequent passage of the act of 1916, supra, in which the penalty for usury has been changed.

This plaintiff remained in possession, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and “instruments convey*897ing lаnd, however clear and unambiguous, can always be shown by parol evidence to have been made to secure a debt, where the vendor remains in possession.” Hand v. Matthews, supra. The agreement that the payment should be called rent does not relieve if the charge is in fact interest upon a debt. The inhibitiоn against usury covers any device by which the effect of the law may be attempted to be evaded. As said by Chief Justice Bleckley in Pope v. Marshall, 78 Ga. 635, 640 (4 S. E. 116) : “No disguise of language сan avail for covering up usury, or glossing over an usurious contract. The theory that a contract will be usurious or not according to the kind of paper-bag it is put up ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in, or according to the more or less ingenious phrases made use of in negotiating it, is altogether erroneous. The law intends that a searсh for usury shall penetrate to the substance.” See also Morrison v. Markham, 78 Ga. 161 (1 S. E. 425), as to devices to evade the laws against usury.

Grounds 3 and 4 of the demurrer are the usual general grounds that there is .no cause of action and no equity in the petition. There may be defects in the petition, which might have required amendment had timely special demurrers seeking more specific infоrmation been filed; but there is certainly enough in the petition to withstand a general demurrer. The petition may lack fullness and formality of statement, but it presents the substance of a cause of action calling for relief. A general demurrer admits the truth of the case as made by the petition, and puts in issue the right of the 'plaintiff to recover upon the law of the case made. Williams v. McIntyre, 8 Ga. 34, 41. The defendant cannot admit all that is alleged and escape liability. This is the test of the sufficiency of a petition as against general demurrer.

Judgment reversed.

All the Justices concur.