Blankenship v. Cochran

107 S.E. 770, 151 Ga. 581, 1921 Ga. LEXIS 335

Opinion

George, J.

1. A grantor in a deed absolute in form but made to secure a debt, who remains in possession of the land conveyed, may, upon the payment of the debt, have the deed canceled as a cloud on his title. A petition alleging facts as just indicated is not demurrable upon the grounds that it states no cause of action, contains no equity, and seeks by parol evidence to add to, take from, or vary a written contract. Civil Code (1910), § 3258; Bashinski v. Swint, 133 Ga. 38 (2), 40 (65 S. E. 152); Mercer v. Morgan, 136 Ga. 632 (71 S. E. 1075); Berry v. Williams, 141 Ga. 642 (81 S. E. 881).

2. Nor is the petition objectionable upon the ground that the deed sought to be canceled is not copied at length in the petition or attached thereto as an exhibit, where, as in this case, the petition alleges that a deed to certain described land was executed and delivered on a date named, by the grantor to the grantee (the defendant in the suit), and that the deed on its face is a straight warranty deed to said land. The purpose of the suit was not to enforce the deed, but to cancel the deed upon the ground that the same was made to secure a debt and that the debt had been paid. The case differs therefore from Social Ben. Society v. Holmes, 127 Ga. 586 (3), 589 (56 S. E. 775).

3. Accordingly, the court did not err in overruling the demurrer to the petition.

-Judgment affirmed

All the Justices concur.