Hazelrigs v. Butler , 204 Ga. 98 ( 1948 )

1. In so far as the petition sought cancellation of the deed it was subject to demurrer. The grantor having died intestate, there being no administration on his estate, and the petitioner not being the sole heir at law, a petition for cancellation could not be maintained, as in such cases both the grantor and the grantee are necessary parties. Reeves v. Tarnok, 161 Ga. 838 (3) (131 S.E. 891), and citations.

2. The petitioner alleging that the grantor in the security deed had sold to her a one-half interest in the property, for which she paid $700, that the grantor refused to execute her a deed therefor, and that the grantee in the security deed took the same without consideration and with knowledge of her equity therein, the petition set forth a cause of action for some of the relief prayed; and, accordingly, the trial judge did not err in overruling a general demurrer thereto and in granting a temporary injunction. Arteaga v. Arteaga, 169 Ga. 595 (151 S.E. 5); Dorsey v. Green, 202 Ga. 655 (44 S.E.2d 377).

3. The defects pointed out in the special demurrer were cured by amendment.

Judgments affirmed. All the Justices concur, except Bell and Wyatt, JJ., absent on account of illness.

Nos. 16209, 16223. JUNE 17, 1948. REHEARING DENIED JULY 16, 1948. Mrs. Forrest L. Butler filed against Willie Hazelrigs a petition, which as amended alleged substantially as follows: She married J. R. Butler in July, 1941. At that time he owned a dwelling house and lot at No. 8 Taylor Street, N.W., Atlanta, Georgia. After the marriage she did, about September, 1941, advance to her husband $700 to improve the house, for which sum he agreed to deed her a one-half undivided interest therein. After receiving the $700, he refused to execute her a deed. Subsequently domestic trouble arose, they separated in March, 1946, and in April, 1947, divorce proceedings were instituted, but her husband died in October, 1947, before a divorce verdict was granted. Following his death she had, on November 3, 1947, set apart to her as a year's support "the equity of deceased, being $1000" in the house and lot in question. She then learned that the house and lot was being advertised for sale by Willie Hazelrigs under the terms of a deed to secure debt of $1800 with power of sale. She alleged: that this note and deed, which were executed on February 8, 1942, were without consideration and executed and delivered fraudulently; that her husband and Willie Hazelrigs conspired and agreed to the purported transfer for the purpose of defeating her rights in and to the property; that she is an heir, but not the sole heir, of her husband, who died intestate; and that there has been no administration upon his estate.

The prayers were: (a) that the defendant be enjoined from further steps in the foreclosure and from encumbering, disposing of, and selling said property; (b) that the loan deed and note be declared null and void; (c) that the petitioner's right to said property be restored unto her, and full and clear title be vested in her; (d) that judgment be given to the petitioner; (e) that said equity of $700 be given to her on said property; (f) for general relief; (g) for process.

A general demurrer and certain special demurrers were overruled. Upon an interlocutory hearing a temporary injunction was granted. Exceptions are to the overruling of the demurrers and to the granting of a temporary injunction.