Jackson v. Watts

154 S.E.2d 195, 223 Ga. 70, 1967 Ga. LEXIS 418

• Court: Supreme Court of Georgia
• Decided: January 5, 1967
• Docket: 23745
• Status: Published

Opinions

Cook, Justice.

The petition of A. B. Watts against Charles G. Jackson and Mrs. Hattie Price Jackson sought the cancellation of a security deed executed by Richard D. Clark to the defendants, the enjoining of a foreclosure sale under this deed, a judgment declaring the fee simple title of described property to be in the petitioner, and other relief. The petitioner alleged that he bought the described property at a foreclosure sale pursuant to the terms of a security deed from Richard Clark to Mrs. J. C. Reeves. It is his contention that the security deed from Richard Clark to the defendants, although recorded prior to the security deed from Richard Clark to Mrs. Reeves, was in fact a second security deed, as shown on the face of the deed, but that the deed inadvertently recited that the first security deed was executed to the Liberty National Bank of Cedartown, Georgia, instead of to Mrs. Reeves. It is alleged that this deed constitutes a cloud upon the petitioner’s title. Held:

A court of equity can not decree the cancellation of a deed unless the parties to the deed, or their representatives, are made parties to the action. Sowell v. Sowell, 212 Ga. 351 (92 SE2d 524); Coleman v. McAdams, 214 Ga. 616 (106 SE2d 840); Heidelberg v. Smith, 214 Ga. 785 (2) (107 SE2d 844); North American Acceptance Corp. v. Ramey, 217 Ga. 476 (123 SE2d 253); Gray v. Georgia Development Enterprises, Inc., 217 Ga. 564 (123 SE2d 753). The petition failed to make the grantor in the security deed sought to be canceled a party to the action, and it was subject to general . demurrer. The trial judge erred in overruling the ground of general demurrer asserting that the petition failed to state a cause of action, and in granting an interlocutory injunction.

Judgment reversed.

All the Justices concur, except Duckworth, C. J., who dissents.