50 S.E.2d 611 | Ga. | 1948
The allegations of the petition were not sufficient to state a cause of action when tested by the rule that the allegations of a pleading will be construed most strongly against the pleader, and when couched in alternative expressions will be given that construction most unfavorable to the pleader.
The Mortbon Corporation and its agents and creatures, Joseph A. West and the Southwall Corporation, acquired no prescriptive title to the property in question by virtue of adverse possession under the sheriff's void deed as color of title, because prior to the time of sale by the sheriff the Mortbon Corporation was entitled to and by consent had actual possession of the property under authority contained in the security deeds which were given originally to the Mortgage-Bond Company.
E. H. Sims and W. K. Grant by loan deed, on July 30, 1945, conveyed the land in question to First Federal Savings Loan Association of Atlanta. None of the defendants, for reasons stated in the petition, have acquired any greater interest in the property than that originally vested in the Mortgage-Bond Company by the loan deeds executed and delivered to it.
The Mortgage-Bond Company, in the manner and way charged in the petition, misappropriated the personal property which the plaintiff conveyed to it by its bill of sale, and credit should now be given on the original indebtedness due that company for the sum of $10,000, which was its fair and reasonable value. *505
E. H. Sims and W. K. Grant, since taking possession of the property in question, have, as plaintiff is informed and believes, collected in rents therefrom at least $45,000, which they should be required to account for.
The Mortbon Corporation (now Telfair Stockton Company) and its agents and creatures, Joseph A. West and the Southwall Corporation, during the time they were in possession of the premises, collected in rents therefrom $82,573.75, and if this amount should be applied to the payment of taxes due on the property and to the principal and interest due on the plaintiff's debt, it would more than pay the secured debt in full.
The petition alleged further that the plaintiff has more than repaid its debt to the Mortbon Corporation, and for that reason is entitled to have its property returned to it. However, later paragraphs in the petition contain these allegations: "Should, on an accounting, it develop that said debt has not been paid in full, plaintiff stands ready to pay any balance that may be due." And "petitioner says that in the event that there should be any balance due on said property, so that it is not entitled to the return of said property in kind at this time, then petitioner is entitled to have the court declare the rights of the various parties hereto in the premises."
An exhibit attached to the petition shows that the gross operating income from the property in question from March 14, 1936, to December 9, 1942, was sufficient in amount to pay the taxes due thereon, and the principal and interest of the secured debt.
The prayers, besides for process and service on non-resident defendants, were: (1) that the defendants be required to account for the rents, issues, and profits received from the property in question while the same was in their possession; (2) that, upon such accounting being had, and it appearing that the secured debt has been paid by a proper application of the rents, issues, and profits of the property, it be declared that plaintiff is entitled to possession of the same and a judgment against Telfair Stockton Company for any overpayment of said debt; and also an accounting by Sims and Grant for the rents, issues, and profits of said property while the same was in their possession, and a judgment against them for the amount shown to be due upon such accounting; (3) that, in the event an accounting *506 should show that the secured debt has not been fully paid, the rights of the parties in said property be declared, and that it be declared that, when the secured debt has been fully paid by a proper application of the rents, issues, and profits thereto, plaintiff is entitled to the possession of said property, to have the various security deeds to said property marked satisfied and canceled of record, and to have its notes marked paid and surrendered; and (4) for general relief.
Demurrers were interposed to the original petition and renewed to the petition as amended. That the amended petition failed to state a cause of action for any of the relief prayed, was the attack made upon it. The demurrers were sustained and the exception here is to that judgment. It is stated in the brief for the plaintiff in error that this case, in its final analysis, presents but two questions, namely: (1) Are the allegations of the amended petition sufficient to show the plaintiff's right to recover possession of the described premises from the defendants, and to have them account for the rents, issues, and profits received therefrom; and (2) is the plaintiff's right to redeem barred by lapse of time under the Code, § 67-115?
We deal first with the sufficiency of the amended petition to show redemption of the plaintiff's title. Unless this is shown, all other issues in the case necessarily become moot. As shown by our statement of facts, the present suit was filed ten years and some months after the premises sought to be recovered were voluntarily admitted into the possession of the plaintiff's grantee for the purpose of applying the rents, issues, and profits arising therefrom to the payment of the secured debt then in default. In the meantime, so far as the record discloses, there was no recognition by any one of the plaintiff's right to redeem.
Our Code, § 67-115, declares: "If the possession of the property shall be given to the mortgagee, the mortgagor may redeem at any time within ten years from the last recognition by the *507
mortgagee of such right of redemption." The plaintiff in error insists that this section has no application to a case where the grantee in a security deed is admitted into possession of the conveyed property by his grantor, as was done in the present case. This contention is without merit. That the grantee in a security deed is a "mortgagee" within the meaning of this section of the Code, is well settled by the decisions of this court.Polhill v. Brown,
It will be conceded that, where title to realty passes under a security deed, redemption can be accomplished only by payment in full of the secured debt. Ashley v. Cook,
Concerning payment, as our statement of facts shows, it is alleged generally that the plaintiff has more than repaid the secured debt, but respecting this the petition contains these further allegations: "Should, on an accounting, it develop that said debt has not been fully paid, petitioner stands ready to pay any balance that may be due." And "petitioner says that in the event that there should be any balance due on said property so that it is not entitled to the return of said property in kind at this time, then petitioner is entitled to have the court declare the rights of the various parties hereto in the premises. And the petition contains prayers which show that the pleader is not certain that the secured debt has been fully paid. Properly construed, the allegations of the petition respecting payment of the secured debt are in the alternative. One alleges payment of the secured debt in full; the other, that the plaintiff is ready to pay any balance of the secured debt found due on an accounting. One shows redemption; the other does not. For purposes of demurrer, the petition must therefore be treated as pleading no more than the latter, because it must be construed most strongly against the pleader. Code, § 81-301; Baggett v.Edwards,
Since the petition in the instant case, when properly construed, does not unequivocally allege full payment of the secured debt during the redemption period, it fails to state a cause of action and the court did not err in dismissing it on demurrer for that reason.
The ruling here made is not in conflict with that announced inCoates v. Jones, supra, cited and strongly relied upon by the plaintiff in error. The facts there were different. In the first place, Jones was not legally in possession of the premises there involved like the defendants are in the present case, but had possession under a void sheriff's sale. And in the next place, the grantor there, unlike the plaintiff here, had a bond for title from her grantee, which contained an obligation to reconvey the premises in controversy upon the payment of the secured debt. Her right to have a reconveyance of the pledged property was fixed by the terms of the bond for title, and suit was there brought to compel compliance with its terms and within the limitation period of such an instrument, to wit, twenty years.
What we now hold with reference to the sufficiency of the petition to state a cause of action becomes the law of this case.Brock *510
v. Brock,
It therefore necessarily follows from what we have said above that the court did not err in sustaining the demurrers and dismissing the plaintiff's case.
Judgment affirmed. All the Justices concur.