Miron Motel, Inc., et al. v. Smith

Supreme Court of Georgia1955-10-10No. 19061

211 Ga. 864

Summary · law.co

Holding. The court affirmed the trial court's dismissal of the petition, holding that the operators lacked standing to enjoin the eviction proceeding and that the petition failed to state valid grounds for canceling the quitclaim deed because the grantor was not joined as a necessary party.

Motel operators sought to enjoin an eviction proceeding and cancel a quitclaim deed following foreclosure of a deed to secure debt on their property. They claimed a parol agreement extended the debt's due date and argued they should be allowed to remain as tenants. The trial court dismissed the petition by sustaining demurrers, and the operators appealed.

The court affirmed the dismissal, finding multiple fatal defects in the petition. The court held that when property is foreclosed under a deed to secure debt, the occupant becomes a tenant at sufferance subject to summary eviction proceedings, and poverty does not provide grounds to seek equitable relief from a summary remedy. Additionally, the petition failed to establish sufficient facts to warrant specific performance of an alleged oral contract to extend the debt terms, as specific performance requires proof that the contract is fair and equitable. Finally, the petition's attempt to cancel the quitclaim deed was procedurally defective because the grantor was not named as a defendant, which the court found to be a necessary party to any action seeking to cancel a deed.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

Status of occupant after foreclosure under deed to secure debt
Right to equitable relief from summary eviction proceedings based on poverty
Sufficiency of allegations to support specific performance of alleged oral contract
Necessary parties to an action to cancel a deed

Procedural posture

The trial court sustained general demurrers and dismissed the petition, and the petitioners appealed the dismissal.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion · public domain

majority opinion

Head, Justice.

1. In a dispossessory proceeding under the Code, Ch. 61-3, the issue is tenancy or no tenancy. Brown v. Persons, 48 Ga. 60; Watson v. Toliver, 103 Ga. 123 (29 S. E. 614); Henry v. Perry, 110 Ga. 630 (36 S. E. 87); Patrick v. Cobb, 122 Ga. 80 (49 S. E. 806); Arnold v. Water Power &c. Co., 147 Ga. 91 (92 S. E. 889); Anderson v. Watkins, 170 Ga. 483 (153 S. E. 8).

Submitted September 12, 1955

Decided October 10, 1955.

J. C. Bowden, for plaintiff in error.

Claud M. Hicks, contra.

(a) When an interest in land is divested under the powers of sale in a deed to secure debt, the occupant of the land becomes a tenant at sufferance. Redwine v. Frizzell, 184 Ga. 230, 235 (190 S. E. 789).

(b) “Where a summary proceeding is instituted under Code § 61-301 et seq., to evict a tenant holding over, the tenant has an adequate remedy under the Code by counter-affidavit and giving bond as provided by the statute. The mere fact that, owing to the tenant’s poverty, he is unable to give the bond, affords him no ground to go into a court of equity and enjoin the plaintiff in such proceeding from pursuing his summary remedy.” Reardon v. Bland, 206 Ga. 633, 639 (3) (58 S. E. 2d 377), and cases cited.

2. The petition nowhere alleges the amount of principal and interest due at the time the deed to secure debt was foreclosed. Herman J. Smith is not a party defendant in the suit, and the petition does not allege that he was agent for the defendant, or authorized to act for her. The allegations of the petition are insufficient to show that the alleged parol contract to extend the due date was such a contract as in good conscience should be performed. “Specific performance is an equitable remedy and one which can not be demanded as a matter of absolute right merely by virtue of proving an agreement. It must be made to appear that the contract is fair, equitable, and just.” Morgan v. Mitchell, 209 Ga. 348, 352 (72 S. E. 2d 310), and cases cited.

3. The powers of sale in a deed to secure debt are matters of contract and will be enforced as written. Plainville Brick Co. v. Williams, 170 Ga. 75 (152 S. E. 85). “Under the codified long-recognized maxim that ‘he who would have equity must do equity, and give effect to all equitable rights in the other party respecting the subject matter of the suit’ (Code, § 37-104), a borrower who has executed a deed to secure debt is not entitled to an injunction against a sale of the property under a power in the deed, unless he first pays or tenders to the creditor the amount admittedly due.” Oliver v. Slack, 192 Ga. 7 (14 S. E. 2d 593), and cases cited.

4. The petitioners seek to cancel a quitclaim deed from J. D. Tindall to the defendant, Mrs. Florence E. Smith. J. D. Tindall, the grantor in the quitclaim deed, is not named as a party defendant. “In all actions to cancel deeds to land, the grantor and grantee therein are necessary parties.” Rylee v. Abernathy, 210 Ga. 673, 674 (82 S. E. 2d 220), and cases cited.

5. Under the foregoing rules, the trial judge did not err in sustaining the general demurrers and dismissing the petition.

Judgment affirmed.

All the Justices concur.