31 S.E.2d 670 | Ga. Ct. App. | 1944
1. Where all right, title, and interest of an owner has been divested by a sale made pursuant to a power of sale given by him in a deed to land to secure a debt, and he thereafter remains in possession, he is a tenant at sufferance of the purchaser, and, as such, may be summarily dispossessed, as provided in the Code, § 61-301. *604
2. An amendment to a counter-affidavit in a dispossessory-warrant proceeding, setting up facts which tended to show that the defendant was entitled to equitable relief in order to put in him the legal title to the premises involved, but containing merely a prayer that the right of possession be decreed in him, did not convert the case into an equity case, and was not germane to the issues involved. The court erred in allowing the amendment, and the further proceedings were nugatory.
The plaintiff objected to the allowance of the amendment on the grounds that it was not germane to the issue; that it undertook to set up an equitable defense to the eviction proceedings which was not purely defensive in character, but sought affirmative equitable relief; that it sought to nullify and set aside a judgment previously rendered in the city court of Ludowici in favor of Franklin Chevrolet Company against the said S. R. Walker; that the same was a collateral attack upon a judgment of a court of competent jurisdiction, and the plaintiff in said judgment was not a party to the proceedings in which the attack upon said judgment was made; that in effect it sought to set aside a deed made in pursuance of a sale under power of attorney contained in a deed to secure debt executed by S. R. Walker to Beasley Banking Company, regularly transferred to Franklin Chevrolet Company, under which the premises were sold, and under which the plaintiff claims title and right of possession; that the effect of said amendment was to seek affirmative equitable relief, which the plaintiff contends can not be set up as a defense to an eviction affidavit.
The court overruled the plaintiff's objections and allowed the amendment, and the plaintiff filed exceptions pendente lite to that ruling. The case proceeded to trial, and the jury returned a *606
verdict finding for the plaintiff the 100-acre tract of land, and for the defendant the 135-acre tract, according to a plat that was tendered in evidence. The plaintiff made a motion for a new trial which was amended by adding several special grounds. The motion was overruled, and the plaintiff excepted to that judgment, and also assigned error on the exceptions pendente lite to the allowance of the amendment to the counter-affidavit. The defendant died pending the motion for a new trial, and R. W. Walker was appointed his administrator.
The proceeding to evict a tenant by dispossessory warrant is a legal proceeding, but can be converted in the superior court into a case in equity by appropriate pleading. This court transferred this case to the Supreme Court. The court declined to accept jurisdiction, which means that the case does not involve title to land and does not contain pleadings converting it into an equity case. While the counter-affidavit set up facts tending to show a right to specific performance, there was no prayer for such relief and in the absence of such a prayer the case remained a purely legal one, and the allegations of the amended affidavit were not germane to the legal question involved in the case. The pleadings showed the legal title to be in the plaintiff as transferee of a purchaser under the power of sale in a security deed, and in these circumstances the defendant was a tenant at sufferance. Code, § 61-303. Anderson v.Watkins,
Judgment reversed. Sutton, P. J., and Felton and Parker, JJ.,concur.