Kinzy v. Waddell , 203 Ga. 689 ( 1948 )

The petition in this case, in the light of the proffered amendment, was sufficient to withstand a general demurrer, and the trial court erred in disallowing the amendment and dismissing the petition.

No. 16212. MAY 14, 1948. E. W. Kinzy and Desma Wall Kinzy filed a suit against W. L. Waddell and Mrs. Virginia L. Waddell, alleging in substance: that the plaintiffs purchased from W. L. Waddell described real estate for a consideration of $5500; that the deed contained a general warranty as to title; that at the time of the transaction there was outstanding against the described property a loan deed executed by W. L. Waddell to Georgia Savings Bank and Trust Company, given to secure a debt of $2400, bearing interest at the rate of six percent per annum, and payable $24 per month; that the $5500 purchase-price was paid for the property "free and clear of encumbrances;" that W. L. Waddell "has omitted, failed and refused to satisfy and cancel said loan deed pursuant to his warranty;" that W. L. Waddell invested the $5500 purchase-price in described real estate, and had the title conveyed to W. L. Waddell and Virginia L. Waddell in order to hinder, delay and defraud the plaintiffs; that Virginia L. Waddell paid for no interest in the property purchased with the $5500, but "W. L. Waddell took title to said property jointly in the name of himself and the said defendant, Virginia L. Waddell, as a part of a scheme, subterfuge and device to avoid his liability to plaintiffs for a breach of warranty;" that both the defendants are insolvent, owning no property other than the property in which the $5500 was invested; that the defendant, W. L. Waddell, by his breach of warranty, has injured and damaged the plaintiffs in the sum of $3500; that the plaintiffs should be allowed to follow the money paid by them into the property purchased by the defendants. The prayers were for an injunction, a judgment against W. L. Waddell in the sum of $3500, that Virginia L. Waddell be decreed to have no interest in the property purchased with the $5500, that the property purchased with the $5500, or the equity therein, be sold by a receiver to be appointed by the court, and the proceeds be held to be applied to any judgment obtained in favor of the plaintiffs, and for general relief.

The defendants in the court below made an oral motion to dismiss the petition, whereupon, the plaintiffs tendered the following amendment: "That Georgia Savings Bank and Trust Company, holder of the deed mentioned in paragraph four of the petition, has asserted against these plaintiffs its title under its deed, and plaintiffs, to prevent foreclosure by said company, have yielded to the demands of said company by paying to it the sum of $300, as a credit upon said loan to prevent foreclosure thereof." This amendment was objected to by the defendants. The trial court refused to allow the amendment and dismissed the petition. To this judgment the plaintiffs in error excepted. 1. "When a vendee under a warranty deed has fairly and reasonably paid a sum of money to remove an encumbrance which was outstanding, and was a legal and valid lien on the land at the time of his purchase, he may recover the amount thus paid from his vendors." Amos v. Cosby, 74 Ga. 793;McEntyre v. Merritt, 49 Ga. App. 416 (175 S.E. 661). This court has recognized the right of a vendee to recover an amount paid in partial discharge of an outstanding encumbrance. In Cheatham v. Palmer, 176 Ga. 227, 236 (167 S.E. 522), a petitioner alleged the payment of one of ten instalments on a paving assessment. This court, in holding that the petition was entitled to recover the amount so paid, and that the trial court erred in sustaining a general demurrer to the petition, said: "In the case at bar the plaintiff received from the defendants a warranty of title to the land, which covered and protected him against encumbrance. At that time of the execution of the warranty deed a valid lien and encumbrance for the assessment for paving the street abutting the property was outstanding against the land conveyed. The plaintiff paid one instalment to protect the title to the property; and we are of the opinion that the defendants should give the plaintiff a clear title to this property."

Applying the foregoing rulings, it follows that the petition, in the light of the proffered amendment, established the right of the plaintiffs in the court below, upon proof of the facts alleged, to recover from the vendor the amount actually paid on the outstanding encumbrance. True it is, as urged by the defendants in error, the petition prayed for the recovery of $3500, and no facts were alleged which would authorize a recovery in this amount; but the fact that the prayer was for a larger amount than the facts alleged would authorize would not defeat the right of the plaintiffs to recover a smaller amount upon proper proof. "The prayer or demand for relief is no part of the plaintiff's cause of action. The sufficiency of the complaint depends not upon the prayer for relief, but upon the facts pleaded; if those facts entitle the plaintiff to any relief, either legal or equitable, although they may not entitle him to all the relief prayed for, the complaint is not subject to demurrer upon the ground that its allegations are insufficient to state a cause of action." 41 Am. Jur. § 110, p. 366. "A petition which alleges an improper measure of damages can not for that reason be dismissed on general demurrer." James v. Dayton Rubber Mfg. Co.,57 Ga. App. 511 (196 S.E. 298); Atlantic Coast Line RailroadCo. v. Tifton Produce Co., 50 Ga. App. 614 (179 S.E. 125);Electric City Brick Co. v. Minter, 38 Ga. App. 583 (2) (144 S.E. 824).

For the reasons stated, the judgment of the trial court, refusing to allow the amendment and dismissing the petition, was erroneous.

Judgment reversed. All the Justices concur.