186 Ga. 460 | Ga. | 1938
The holder of a junior security deed brought his petition against the assignee of a senior security deed, her attorney who was advertising the property for sale under a power in the deed, and against the owner of the land and the publisher of the newspaper advertising the land for sale. It was alleged in effect that the owner of the land had actually paid off the debt of the senior lien, but, instead of having it canceled, fraudulently arranged with the defendant assignee to obtain the assignment in order to defeat the collection of the plaintiff’s debt under his junior lien, and that for the purpose of carrying out this scheme the defendants were proceeding to advertise and sell the land under the power in the senior security deed. The prayers were for delivery into court, for cancellation, of the senior security deed, the notes secured thereby, and the assignment thereof, all alleged to be In the possession of the defendant attorney; for an adjustment of the claims and rights of the two alleged lienholders; for a sale of the property to satisfy the claim of the junior lienholder, with a tender to the senior-lien claimant of any amount which she might ¡be
1. While it is not a fraud against the holder of a junior lien for the owner of the land to arrange with a third person for the purchase of an outstanding valid senior lien, for the purpose of thereafter advertising and selling the property thereunder in order to satisfy any actually unpaid debt secured by the senior lien, since in such a legitimate transaction the remedy of the junior lien-holder is the payment or tender of the debt secured by the senior lien, the rule would be different, if, as here alleged in the petition by the junior lienholder, the owner of the land had actually paid off the debt of the senior lien, but, instead of having it canceled, fraudulently arranged with the third person to obtain an assignment thereof in order to defeat the claim of the junior lienholder.
2. Although “The general rule is that in order for a plaintiff to maintain an equitable petition to remove a cloud upon his title he must allege and prove possession in himself, an exception to this rule is that where there is any other distinct head of equity jurisdiction sufficient to support the action, possession of the plaintiff is not required.” Morris v. Mobley, 171 Ga.. 224 (6) (155 S. E. 8); Mentone Hotel Co. v. Taylor, 161 Ga. 237, 242 (130 S. E. 527); Greenwood v. Starr, 174 Ga. 503 (2) (163 S. E. 500). Since the petition alleged fraud and other grounds of equitable jurisdiction, an averment that the plaintiff was in possession of the land was unnecessary.
3. The amended petition alleged, with respect to the junior lien claimed by the plaintiff, that in 1926 the former owner of the land executed to him a deed, which was recorded, conveying the
(a) The petition having been filed and the alleged adverse possession antedating the act approved February 33, 1937 (Ga. L. 1937, p. 755), declaring that “from and after the passage of this act prescription shall not run against the paper or holder of a mortgage, deed to secure debt, . . or other instrument creating a lien on or conveying an interest in real or personal property as security for debt, in favor of a person who has actual or constructive notice of such instrument,” that act is not controlling in this case.
(b) Until after a default by the grantor, the grantee in a security deed has no right of entry such as will authorize him to maintain an action against the grantor for recovery of the land, with the accompanying right to apply the rents and profits until they are sufficient to discharge the debt. Paden v. Phoenix Planing Mill, 140 Ga. 46 (78 S. E. 412); Capps v. Smith, 175 Ga. 795 (4) (166 S. E. 234), and cit.; Polhill v. Brown, 84 Ga. 338 (9, 10) (10 S. E. 931); Alston v. Wingfield, 53 Ga. 18; Hill v. Winn, 60 Ga. 337; Stevens v. McCurdy, 124 Ga. 456, 458 (53 S. E. 762). A purchaser from the grantor in the security deed, therefore, claiming an adverse possession under color of title, before the act of February 33, 1937, could not acquire such a possession as against the grantee until the maturity of some part of the debt gave to the
(c) “Permissive possession can not be the foundation of a prescription, until an adverse claim and actual notice to the other party.” Code, § 85-402. “Possession remaining with the grantor and never surrendered is held under the grantee, and is not adverse to his title; and neither prescription nor the statute of limitations is available as a defense to an action of ejectment founded on the deed.” Jay v. Whelchel, 78 Ga. 786, 789 (3 S. E. 906); Rucker v. Rucker, 136 Ga. 830 (2) (72 S. E. 241); Melson v. Leigh, 159 Ga. 683 (126 S. E. 718); Johnson v. Hume, 163 Ga. 867 (137 S. E. 56). This rule, applicable to grantors in security deeds and vendees under bond for title, applies also to an heir, the “heir at law succeeding to [such a vendee’s] possession [standing] in his shoes as to rights, and also as to disabilities and estoppels.” This principle is “closely analogous to the rule applicable in cases where the rights of persons holding under landlords are involved.” Powell on Actions for Land, §§ 375, 392. Accordingly, in' such cases the debtor’s “possession, and after his death the possession of his heirs, [are] permissive, and no prescription can be based on such possession.” Doris v. Story, 122 Ga. 611 (4), 615 (50 S. E. 348); McMath v. Teel, 64 Ga. 595 (4), 599; Tanner v. John Hancock Mutual Life Ins. Co., 73 Fed. (2d) 382, 383.
4. A general demurrer should be overruled, if the alleged facts, entitle the plaintiff to any of the substantial relief prayed. Arteaga v. Arteaga, 169 Ga. 595 (4) (151 S. E. 5); Robinson v. Georgia Savings Bank &c. Co., 185 Ga. 688, 694 (196 S. E. 395). Accordingly, even though the petition sought an ungrantable personal judgment against the defendant now owning the land, in the absence of any assumption by her of the plaintiff’s debt contracted by the former owner of the land, there were other proper allegations and prayers, seeking in effect a foreclosure of the plaintiff’s deed and other relief in rem.
5. While it is true that a petition to cancel a deed or lien or to remove a cloud on the title to land is not a suit “respecting titles to land,” within the meaning of the Code, §§ 2-4302 and1 3-203, so as to give jurisdiction against the resident of another! county of this State to the superior court of the county where the land lies (Cook v. Grimsley, 175 Ga. 138, 140, 143, 165 S. E. 30 ;
6. Where, however, such an equitable petition in this case was brought by a junior lienholder, not only against an assignee of a senior lien residing in another State, but also against and in the county of the residence of her attorney in possession of and actively foreclosing the lien instruments under a power contained therein (see Sellers v. Page, 127 Ga. 633, 637-639, 56 S. E. 1011, distinguishing Meeks v. Roan, 117 Ga. 865, 45 S. E. 252; Babson v. McEachin, 147 Ga. 143 (3-a), 93 S. E. 292), and also against
7. In accordance with the foregoing rulings, the court did not err in overruling the demurrer to the petition, either on the ground that it failed to set forth a cause of action for legal or equitable relief, or on the ground that the court was without jurisdiction.
Judgment affirmed.