Sullivan v. Rich , 1916 Ga. App. LEXIS 311 ( 1916 )

Hodges, J.

1. This suit was for. the unpaid balance of the purchase-price of certain land, and the plaintiff prayed not only for a judgment for the amount alleged to be due but that a special lien for the debt be established upon the land described. It appeared from the petition that the defendant held a bond for title to the land, the legal title being in the plaintiff. The defendant demurred to the prayer for the establishment of a special lien upon the property, and the court overruled the demurrer. There was no error in this ruling. It seems to be the better practice in cases of this character to set out in the pleadings all the facts necessary to sustain such special lien. Marshall v. Charland, 109 Ga. 306 (34 S. E. 671). The decision in the case of Terrell v. Fraser, 113 Ga. 1087 (39 S. E. 476), does not hold to the contrary. In that case there was a general verdict for the plaintiff, and it was held merely that the failure to find that the plaintiff was entitled to a special lien on the land was not cause for a new trial; that the priority of the lien of his general judgment could be shown at any time by aliunde proof.

3. The defendant’s answer to the suit was in effect a plea of usury, and was insufficient in law, and was properly stricken on demurrer, the answer not setting forth the elements required by section 5674 of the Civil Code of 1910. Judgment affirmed.