1. The allegations of the defendant's answer did not state a cause of action for cancellation.
2. The contentions of the parties are in substantial conflict on a material issue of fact. The court erred in striking the answer, which was in the nature of a cross-action.
No. 16784. OCTOBER 11, 1949. REHEARING DENIED NOVEMBER 18, 1949. Joe Cordell filed an equitable petition to temporarily and permanently enjoin his father, W. J. Cordell, from advertising, *Page 215 offering for sale, and selling described lands under the powers contained in a security deed. In substance, his petition, as amended, alleged: Mrs. Amanda Cordell executed the security deed in connection with the purchase of the lands. She died after the execution of the deed, and no administration was had on her estate. In pursuance of a plan whereby the other heirs could be paid for their interest in the estate of their mother, and a home provided for their father during his lifetime, the heirs conveyed to the plaintiff and his sister, Mrs. Thomas, their interest in the lands, and the plaintiff and his sister conveyed a life estate to their father, W. J. Cordell. Later Mrs. Thomas conveyed her interest to the plaintiff, subject to the life estate conveyed to the defendant. The plaintiff and the defendant cut certain timber on the farm and built a house at an expense of approximately $500 to the plaintiff. The plaintiff lived on the property for approximately a year, when his work called him to another State. His sister, Mrs. Thomas, who had agreed to live with her father and keep house for him, later moved from the farm. At the time of the death of Mrs. Cordell, there was a balance due on the property of approximately $700. The balance due was to be paid from the proceeds of the farm. The plaintiff is advised that this has been done. Notwithstanding that the defendant was a party to the transaction whereby title was vested in the plaintiff, and the agreement that the notes should be paid from the proceeds of the farm, he has secretly and illegally sought to have the notes transferred and assigned to him, and he is attempting to sell and dispose of the property under the powers of the security deed. After receiving notice of the advertisement, the plaintiff requested the defendant to withdraw the advertisement. This the defendant refused to do, and stated that he would sell the property and buy it in himself. The plaintiff has invested in the property in good faith approximately $2000. The defendant parted with his interest and title to the lands voluntarily for a good consideration by a deed to the plaintiff, and he has never offered to account for the benefits he has received from the property by reason of the life estate conveyed to him. The proposed sale is illegal, and if permitted to go forward, the deed made pursuant to such a sale would constitute a cloud upon the title of the plaintiff to the premises, *Page 216 the plaintiff will be irreparably injured, and a multiplicity of actions will result. A temporary restraining order was granted.
The defendant filed an answer which, as amended, alleged: Mrs. Amanda Cordell at the time of her death owned only an equity of redemption in the lands described, title to the lands being in J. L. Hutto, or his estate, by virtue of a security deed executed by Mrs. Cordell, in the principal sum of $1300, plus interest at 5%. The plaintiff and his sister, with the intention of obtaining the entire estate for their own use and benefit, made the proposition that, if the other heirs would convey to the plaintiff and his sister their interest in the estate, the sister would stay with the defendant and make a home for him, and the plaintiff would work and help pay the indebtedness. Believing that his son and daughter would do as stated, the defendant persuaded the other children to enter into a quitclaim deed conveying the lands pursuant to the agreement. Shortly thereafter, the plaintiff moved away and refused to pay the indebtedness, and has never paid any part thereof, nor has he done any work contributing to the payment. All payments have been made by the defendant from his own earnings, without aid or assistance from the plaintiff. The daughter who agreed to keep house for the defendant moved away, leaving him to do his own housekeeping. By payment of the indebtedness on the property to the Hutto estate, the defendant was trying to protect himself and the amount he had expended on the property, and he had the security deed transferred for this purpose. The total amount of indebtedness of $1300 was paid by the defendant without any agreement that he would receive any less amount by way of reimbursement. The defendant's payment of the purchase money notes was no part of the consideration for the life estate conveyed to him. Title to the lands having been conveyed to J. L. Hutto by Mrs. Amanda Cordell, to secure the balance of the purchase-money, title to the lands did not descend to the heirs of Mrs. Cordell, and her estate is indebted to the defendant in the principal sum of $1300, with interest at 5% from October 18, 1938. The defendant is entitled to have a special lien on the property for the amount of improvements made in excess of the rental value. At the time of the payment by the defendant to the heirs of J. L. Hutto, there was no administration *Page 217 on his estate, he owed no debts, his heirs were all more than twenty-one years of age and laboring under no disabilities, and the transfer of the notes and security deed to the defendant was valid. He prayed: that persons executing the quitclaim deed to the plaintiff be made parties to the suit; that the defendant be subrogated to all the rights of the grantee in the security deed from Amanda Cordell to J. L. Hutto; for a special lien upon the land; that the deeds from the heirs of Mrs. Cordell to the plaintiff be delivered up and canceled; and for other relief.
On motion of counsel for the plaintiff, the answer of the defendant, as amended, was stricken, and the defendant was permanently enjoined from advertising or selling the property. The bill of exceptions assigns error on the striking of the answer and amendment in the form of a cross-action, and the judgment permanently enjoining the defendant. 1. The defendant, by his answer and cross-action, sought a cancellation of the deeds made by the heirs of Mrs. Amanda Cordell to the plaintiff. The defendant alleged that these deeds were based in part on an agreement that a named daughter would reside with him and perform certain services in maintaining a home for him, and that the plaintiff would reside upon the property and by his work on the farm assist in retiring the indebtedness. A breach of the agreements as alleged would not entitle the defendant to cancellation of the deeds. Brand v. Power, 110 Ga. 522 (36 S.E. 53);Christian v. Ross, 145 Ga. 284 (88 S.E. 986).
It clearly appears from both the petition and the answer and cross-action of the defendant that a part of the consideration for the execution of the deeds by the heirs of Mrs. Amanda Cordell to the plaintiff was the agreement that a life estate in the entire property (equity of redemption) was to be conveyed to the defendant. Under the agreement and deeds as executed, the defendant exchanged a one-fifth undivided interest for a life estate in the entire property. If the agreements of the plaintiff and his sister had constituted the sole consideration for the execution of the quitclaim deeds to the plaintiff, and if at the time the plaintiff and his sister made the promise to perform *Page 218 certain acts with reference to caring for the defendant and paying the indebtedness there was a present intention on the part of the promissors not to comply with it, a cause of action for cancellation might be shown, under the ruling in Brinson v.Hester, 185 Ga. 762 (1) (196 S.E. 412). Such are not the facts alleged, however. The exchange of an undivided one-fifth interest for a life estate was a valuable consideration; and where a substantial part of the consideration has not failed, the grantor's remedy would be an action for damages for the breach or partial failure of consideration. The defendant does not allege that the plaintiff is insolvent, nor are there any special facts or circumstances pleaded tending to show that an action for damages would not be an adequate remedy for the partial failure of consideration alleged.
2. If, as alleged by the plaintiff, there was an agreement between the plaintiff and the defendant that the balance of the indebtedness due on the notes was to be paid from the proceeds of the farm, and if, as alleged, such indebtedness was paid pursuant to this agreement, the defendant would not have any legal or equitable right to exercise the powers of the security deed, as transferee.
The defendant alleges that the money used by him to pay the balance due on the notes and security deed (which represented the purchase-price) was earned by him, and that he is entitled to be subrogated to the rights of the original holder of the security deed. Whether or not the transfer to the defendant was sufficient, under the act of the General Assembly of 1937 (Ga. L. 1937, pp. 481-482, Code, Ann. Supp., § 37-607), to vest in the defendant the right to exercise the power of sale contained in the security deed, is a question that need not be determined under the present state of the record. If, as contended by the defendant, the payments were made by him from his own funds, and if he did not agree, as a part of the consideration for the deed conveying him a life estate, to make the payments, he would be entitled to be subrogated to whatever rights the persons transferring the notes and security deed to him had at the time of such transfer. The defendant was not a mere volunteer.Cornelia Bank v. First National Bank of Quitman, 170 Ga. 747 (154 S.E. 234); Lee v. Arlington Peanut Co., *Page 219 176 Ga. 816 (169 S.E. 1); Telfair Stockton Co. v. Trust Co. ofGa., 203 Ga. 802, 810 (48 S.E.2d 532). He had a life estate in the property, and was therefore interested in preserving this interest. If, upon a trial of the case, the jury should find that the defendant's allegations are true, the defendant would be entitled to assert a lien against the property for the payments made, provided he proves that the payments were made to persons entitled to receive them. The defendant's answer made a question of fact to be submitted to the jury, and the trial court erred in striking the answer and cross-action, as amended.
Judgment reversed. All the Justices concur.