WARD v. MCGUIRE., 213 Ga. 563, 100 S.E.2.d 276 (1957)
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J. R. Cullens, contra.Pittman & Crowe, for plaintiff in error.
A lessee in possession of real estate, covered by a security deed, for a term of ten years with an option to purchase such property, has such an interest in the property that he can make a valid tender of payment of the debt to the holder of the security deed, and can thereby prevent the holder from exercising the power of sale contained in the security deed.
The judgment under review is one sustaining a general demurrer to an equitable petition praying for an injunction and other relief.
In substance, the petition alleged: that, on October 5, 1956, the defendant, Charles D. Brown, and the plaintiff, Troy O. Ward, entered into a written contract, whereby Brown leased to Ward 51 acres of land with a house thereon to be used for farming purposes for a term of 10 years, commencing on January 1, 1957, the lessee agreeing to pay annually $250.00 as rent to the lessor, such sum having been paid for the year 1957; that the lessee was granted the right to purchase the property at any time within the ten-year term for $3,500, with the privilege of applying on the purchase price the annual rentals previously paid, the lessee to refund any taxes paid by the lessor in the event the option was exercised. It was alleged that, while the lessee was in possession of the described property and after the lease contract had been executed, the lessor executed a security deed conveying the property contained in the lease to his mother, the defendant Kitty B. McGuire, on October 10, 1956, to secure a purported indebtedness of $1,500; that the defendant McGuire, at the time she took the security deed, knew that the lessee was in possession of the property under the aforesaid lease contract; that on January 11, 1957, the defendant began to advertise the sale of the property under a power of sale contained in the security deed; and that on January 21, 1957, the plaintiff tendered in payment to the defendant McGuire the full amount of the debt for which the security deed was given plus the advertising costs of the proposed sale; but that such tender was refused. A continuing tender and a tender into the trial court was also alleged. Plaintiff further alleged that, as lessee, he has expended $800 in cultivating the land and in constructing structures on the premises. There were other allegations charging the defendants with fraud, but it is unnecessary to relate them here. Among the prayers was one seeking to enjoin the defendant McGuire from selling the land under the power contained in the security deed.
A general demurrer to an equitable petition should not be sustained if the facts alleged therein entitle the plaintiff to any of the substantial relief sought. Arteaga v. Arteaga, 211 Ga. 103 (84 S. E. 2d 70); Edwards v. United Food Brokers,
The court erred in sustaining the general demurrer of the defendant McGuire.
Judgment reversed. All the Justices concur.
1957
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