1. A petition alleging the plaintiff to be the equitable owner and in possession of certain described premises under contract of purchase with the defendant, and alleging that the defendant is seeking to oust him from possession by dispossessory warrant on the claim that he is a tenant of the defendant, holding over, in which the plaintiff seeks a decree of specific performance of his contract, offering to pay the amount due thereon and seeking at the same time injunction against such eviction, states a cause of action in equity.
2. Where in such a case the plaintiff, having paid a part of the purchase-price and having made substantial improvements on the property so held, surrendered to the defendant the bond for title under which he held the property upon the express understanding that it was for the sole purpose of enabling the defendant to procure a loan, and that warranty deed would be made to the plaintiff upon the payment of the balance of the purchase-price including outstanding indebtedness, the surrender of the bond for title did not render the plaintiff's petition subject to dismissal on motion, it not appearing that the character of the plaintiff's possession as owner was changed in such transaction to that of tenant.
No. 14046. APRIL 15, 1942.
A. R. DeFloreo by his petition alleged, that Tarvin, the defendant, was seeking by means of a dispossessory warrant issued at his instance to oust the plaintiff from possession of certain described
real property, on the claim that DeFloreo was a tenant of Tarvin holding over (Code, § 61-301); that the plaintiff was not in fact a tenant of Tarvin; that he held the premises as owner; that he went into possession and had continued in possession as owner, under a contract of purchase made between him and Tarvin in 1938; that the character of his occupancy and possession had not changed since that time; that in the purchase of said property he agreed to pay $2200, and at the time of the execution of the contract of purchase he did in fact pay $400 or $450 in cash, and agreed to assume certain outstanding indebtedness against the property; that he did assume such indebtedness and was to pay it all as a part of the purchase-price. He alleged further: "At the time of his said trade with the defendant, the defendant made and executed to your petitioner, according to his best recollection, a bond for title, by the terms of which said Tarvin agreed to make to your petitioner the payments called for thereunder and the obligations therein provided for; and he says also that to the best of his recollection he made and executed to the defendant promissory notes for the balance of the purchase-money on said transaction." He alleged, that in taking and continuing possession pursuant to this contract of purchase he had returned the property for taxes, and had applied for homestead exemption, which had been allowed him for the year 1939; that in 1940 he had by inadvertence omitted to return the same; that upon the maturity of one of the items of indebtedness which he had assumed he paid $300 toward its discharge, and the defendant paid the balance of it; that the plaintiff had made various improvements on the property, up to $400; that when another item of the outstanding indebtedness assumed by him became due, and payment was demanded, "it became necessary for him and the defendant, Tarvin, in order to satisfy" the said indebtedness, "to effect a loan, which was done. . . Defendant shows that in order to facilitate the securing of said loan, and to simplify the securing of said loan, said Tarvin requested that your petitioner cancel and surrender to defendant the bond for title that had been made to your petitioner, with the express understanding and agreement that when your petitioner paid the said Tarvin the balance due on the purchase-price of said property he would execute and deliver to your petitioner a warranty deed for the same," pursuant to which this was done, and in addition
thereto the plaintiff paid on said indebtedness to Tarvin an additional $250, and continued, as before, in possession. He further says, that the purchase-money notes executed by him and delivered to Tarvin have never been returned to him; that because of the refinancing of the outstanding indebtedness just referred to, and of other confusion, and because he does not have the papers in his possession, he is unable to state the exact amount due by him under the purchase; that he has demanded this information of Tarvin, and has stated to Tarvin that he is ready, willing, and able to pay the balance of the purchase-price when advised as to the amount; that he stands now ready, willing, and able to pay the same whenever the amount may in this proceeding be determined." He asks that the defendant be required to produce in court the purchase-money notes and the bond for title surrendered by him, and that he have decree of specific performance, pending which time that the dispossessory-warrant proceedings be restrained and enjoined, contending that he has not an adequate remedy at law.
There was no demurrer to the petition. The judge dismissed it on motion, as stating no cause of action.
A tenant has an adequate remedy at law by which he may resist or contest a dispossessory-warrant proceeding (Code, § 61-303), and equity will not interfere with such regular process. Johnson v. Thrower, 117 Ga. 1007 (44 S.E. 846);Napier v. Varner, 149 Ga. 586 (101 S.E. 580). But if the primary purpose of a petition in equity is to obtain specific performance of a contract of purchase, equity will entertain the petition, and pending its determination may properly stay the dispossessory proceedings. In Harvey v. Atlanta LowryNational Bank, 164 Ga. 625 (2) (139 S.E. 147), this court held: "When an alleged landlord sued out a statutory proceeding to eject an alleged tenant for non-payment of rent, the latter could file her suit in equity against the alleged landlord to enjoin the dispossessory proceeding, where she denied that the relation of landlord and tenant existed between her and the plaintiff in such proceeding, but alleged that she held under such plaintiff under a contract of sale, and in the same suit, in a proper case, could seek specific performance, by
the plaintiff in such proceeding, of the contract of sale, without being required to file a counter-affidavit to such proceeding and to give the bond required by the statute to arrest such proceeding, and without being required to file her suit for such equitable relief in the county where such proceeding was instituted." In Hays v. Clay, 124 Ga. 908 (53 S.E. 399), the situation of the parties was much the same as in the instant case, and it was there held that the petition was properly dismissed. Examination of the record in that case shows that the trial judge based his ruling upon his view that the petition showed the plaintiff to be a tenant. It did appear that she had been paying rent. She protested that she had been forced to pay rent in fear of eviction, and in her suit claimed that such rental payments should be treated as part payment of the indebtedness. She claimed that all such indebtedness against the property had been thereby discharged. The opinion in that case does not disclose that she sought any relief in respect to the premises except injunction against eviction, but examination of the pleadings shows that she went somewhat further and sought a decree for an interest in the land. So, considering this latter character of the case in addition to the other elements appearing in the opinion, it is difficult to distinguish it in principle from the one now under consideration. But both in the Harvey
case and in the Hays case, supra, the court was undertaking to apply the same rule of law. The decision in the Hays case was not by the entire bench, Atkinson, J., not presiding. TheHarvey case was concurred in by all the Justices, as were others now to be cited; and we think they require the conclusion that the petition in the instant case was good as against the motion to dismiss. It is to be remembered that there was no demurrer pointing out any failure to plead more specifically, and all the allegations including the looser ones are to be taken as true as against the motion to dismiss.
In Patterson v. Barron, 177 Ga. 159 (169 S.E. 899), the plaintiff sought to protect and have decreed an equitable interest in land and relief against ouster. The court said: "In a suit to enjoin the eviction of the plaintiff under a dispossessory warrant, where the petition not only shows that the plaintiff is not a tenant as claimed in the dispossessory warrant, but alleges facts from which it appears that the plaintiff, as against the defendant, is the equitable owner of an undivided interest in the property, and contains prayers appropriate
to the protection of such interest by a court of equity, the petition is not subject to demurrer upon the ground that it fails to state a cause of action, or upon the ground that the plaintiff has a complete and adequate remedy at law. Civil Code (1910), §§ 3739 (1), 4634; Smith v. Wynn, 111 Ga. 884 (36 S.E. 970);Pope v. Thompson, 157 Ga. 891 (122 S.E. 604); Harvey v.Atlanta Lowry National Bank, 164 Ga. 625 (2) (139 S.E. 147); Sims v. Etheridge, 169 Ga. 400 (2) (150 S.E. 647)." In McIntyre v. Etheridge, 169 Ga. 719 (151 S.E. 381), a somewhat similar case, it was held that injunction was properly denied; but it there appeared that the person not only had surrendered his bond for title but had agreed to a recission of the contract of purchase. In that situation the court concluded that the relation of landlord and tenant existed. In the instant case it is alleged that upon surrender of the bond for title it was expressly agreed that the seller would still convey the property by warranty deed when the balance of the purchase-price was paid. Aside from the written contract evidenced by the bond for title and the purchase-money notes, the plaintiff by his allegations showed that he assumed and remained in possession under contract of purchase, and had paid part of the purchase-price, and had made valuable improvements. See, in this connection, White v. Mitchell, 69 Ga. 759; Vickers v.Robinson, 157 Ga. 731 (6), 732 (122 S.E. 405). The purchaser also at the time paid an additional $250 toward the purchase-price. Neither in the Harvey case nor in thePatterson case nor in those cited therein was the petition entertained on the idea of fraud, but on the idea of securing either specific performance or some other equitable relief to which the injunction against eviction was incidental.
Judgment reversed. All the Justices concur.