Martin v. Home Owners Loan Corporation , 198 Ga. 288 ( 1944 )

The equity features which this case originally contained having been abandoned or eliminated before the judgment sustaining the demurrer and dismissing the action, the Court of Appeals and not this court has jurisdiction.

No. 14950. SEPTEMBER 11, 1944. Mrs. Esther L. Martin filed in Fulton superior court against Home Owners Loan Corporation a petition which, as several times amended, sought damages and the recovery of title to land. General and special demurrers were sustained, and the petition ordered dismissed, with leave to amend within twenty days. The petitioner tendered another amendment, striking all prior amendments and the original prayers numbered 2 to 22, both inclusive, which was allowed subject to objection. The 23rd prayer (for such other and further relief as the court in its judgment should deem right and just), and the 24th (for the decree of title in the petitioner), were not formally and in terms stricken. However, the final amendment stated that the petitioner had stricken all prayers from her petition as to the recovery of title, and that she elected to proceed for damages caused by the defendant's failure and refusal to comply with its agreement, and by its wrongful foreclosure.

As finally amended the petition alleged substantially the following: She was the owner of a described house and lot in the City of Atlanta known as 1003 North Avenue, N.E. On May 31, 1935, she secured a government loan of $5396.65 through the defendant, and executed a security deed, which provided that, in the event of a default for ninety days in the payment of any installment, the holder of the deed might at its option declare all the remaining indebtedness due. About May 1, 1939, she and the defendant entered into a valid "rental-assignment" contract as to the payment of any past-due deferred payments, and as to the future payments. Under such rental-assignment contract, the defendant agreed to accept the sum of $77 and withdraw threatened foreclosure proceedings, and agreed that future indebtedness would be taken care of through the payment of rents received from the property. After the agreement to use the rents for paying the indebtedness and the taxes due on the property, the defendant agreed that the petitioner could take from the monthly rentals all above $40, to use toward maintaining the property. Notwithstanding the petitioner was performing the contract, without being subject to a foreclosure (in that the loan was in good standing and there was no default for a period of ninety days), the defendant wrongfully caused the property to be advertised for sale, under the power in the security deed in the Fulton County Daily Report, a legal paper of which the petitioner did not know at that time and had never read. She had no knowledge of the alleged wrongful exercise of the power of sale until the middle of October, 1940, when she was served with a dispossessory notice. While the defendant knew her address and was in regular communication with her, it did not inform her thereof, but said nothing until after its wrongful execution of the power-of-sale deed. The defendant, through its rental agency, continued to rent the premises and to receive $60 to $70 monthly until it conveyed the property to third parties. The alleged illegal exercise of the power of sale took place on August 6, 1940, and the power-of-sale deed was recorded on August 16, 1940. The above acts injured the petitioner in the sum of approximately $6000 in addition to other damages set out in the petition. The damages can not be definitely ascertained without an equitable accounting, and the petitioner is without an adequate remedy at law as to her claims and as to the proper sums due to her by the defendant, and she now seeks the aid of a court of equity. The prayers were: (a) for an accounting according to equity and under equitable principles; (b) for a recovery of such actual damages as have been sustained from the alleged wrongful acts; (c) for a recovery of such sums as may be found due to the petitioner upon an equitable accounting, as a result of the alleged breach of the contract of May 1, 1939, and as a result of the divesting of the petitioner's title to the property; (d) for a recovery of the difference between the highest market value of the property between the date of the wrongful sale and the date of the action, less the true amount found to be due on the loan; and (e) for additional damages on account of the humiliation caused by the defendant's wilful wrongs.

The exception is to an order sustaining the defendant's demurrer, renewed to the petition as amended, and dismissing the action. (After stating the foregoing facts.) The petition contains allegations appropriate to an action of damages for fraud arising out of contract. While there are averments and a prayer in reference to an equitable accounting, it has been held that the mere necessity for an accounting to ascertain the amount due on a contract is insufficient to give equity jurisdiction to order an accounting. Burress v. Montgomery,148 Ga. 548 (5) (97 S.E. 538). The prayer "that such other and further relief be granted as the court in its judgment deems right and just," can not, unaided, make an equity case. AtlantaFinance Co. v. Fitzgerald, 189 Ga. 121 (5 S.E.2d 242). Nor is this made an equity case by reason of that portion of the Code, § 37-301, which states in effect that equity jurisdiction exists "where accounts are complicated and intricate." While there are allegations that the account is complicated and intricate, the facts pleaded in this connection do not indicate any reason why, if an auditor be needed, one appointed at law under the Code, § 10-102 et seq., could not give the complainant adequate relief. Manry v. Hendricks,192 Ga. 319 (15 S.E.2d 434). See also Futrelle v. Karsman,169 Ga. 371 (150 S.E. 94); Goodwyn v. Roop, 181 Ga. 327 (182 S.E. 4); Moseley v. Alspaugh, 192 Ga. 216 (14 S.E.2d 737). While another prayer of the original petition, to wit, "that title to said property be decreed in petitioner's name," was never formally and in terms stricken, this prayer was abandoned by the language of the amendment that petitioner had stricken all prayers from her petition as to a recovery of title, and elected to proceed against the defendant for damages.

The equity features which this case originally contained having been abandoned or eliminated before the judgment complained of, sustaining the demurrer and dismissing the action, the Court of Appeals and not this court has jurisdiction.Brandt v. Buckley, 151 Ga. 582 (107 S.E. 773); Cochran v. Stephens, 155 Ga. 134 (116 S.E. 303); United StatesFidelity c. Co. v. Koehler, 161 Ga. 934 (132 S.E. 64);Coats v. Casey, 162 Ga. 236 (133 S.E. 237); Byrd v.Piha, 169 Ga. 115 (149 S.E. 699); Martin v. Deaton,172 Ga. 557 (158 S.E. 331); Brightwell v. Oglethorpe TelephoneCo., 176 Ga. 65 (106 S.E. 646); Gilbert Hotel v. Black,192 Ga. 641 (16 S.E.2d 435).

Transferred to the Court of Appeals. All the Justices concur,except Duckworth, J., who dissents.