The petition stated a cause of action and the trial court erred in sustaining the general demurrer and in dismissing it.
Jacobs brought this action against Willie Reisman, H. D. Brazell Construction Company, and Peachtree Federal Savings & Loan Association alleging that on June 19, 1956, he conveyed to the construction company by warranty deed a described parcel of land; that on the same day the construction company executed in favor of the Savings & Loan Association a loan deed conveying the property as security for a loan of $18,000 as evidenced by a promissory note in that amount; that simultaneously therewith the construction company executed to the plaintiff a deed to secure debt in the amount of $1,975 for the balance of the purchase money for the property, said deed reciting that it was given subject to the first loan owing to the Peachtree Federal Savings & Loan Association; that thereafter the indebtedness to the Savings & Loan Association defaulted, and on November 21, 1956, the association transferred the note and security deed to the defendant Reisman, and that on December 9, 1957, Reisman instituted foreclosure proceedings; that the plaintiff tendered to Reisman the sum of $18,000, plus interest to the date of tender "which said sum so tendered, your petitioner alleges, was the entire amount due under said security deed given to said Peachtree Federal Savings & Loan Association and the amount to which petitioner subordinated his lien for the balance of the purchase money"; that both the Savings & Loan Association and the defendant Reisman had actual notice of the execution and existence of the purchase money security deed held by the plaintiff and that any claim held by Reisman against the construction company was subordinate to the plaintiff's lien under the said purchase money security deed; that Reisman refused to accept the tender made by the petitioner ontending that the security deed given to the association was an "open-end" mortgage and that by virtue of its provisions he was entitled to tack on thereto the sum of approximately $6,000 owed him by the construction company "by reason of his being surety on an obligation [of the construction company], but said claim sought to be so 'tacked on' is unliquidated, uncertain and not now reasonably determinable, and even if liquidated could not be 'tacked' to the original indebtedness due Peachtree Federal Savings & Loan Association." The petition further alleged that the defendant Reisman had no right to foreclose the said security deed and indebtedness secured thereby except subject to the plaintiff's claim under the security deed held by him, and that petitioner was entitled to have the said deed and notes secured by the same delivered up and canceled upon the payment of the tender. The original petition sought to enjoin the foreclosure and sale of the property. The trial court sustained a general demurrer to the petition and the exception here is to that judgment. The case was originally
carried to the Supreme Court and was by that court transferred to this court since it was made to appear on the argument of the case there that the property involved had been sold under the power contained in the senior security deed, and that a sufficient amount of the proceeds resulting from the sale had been deposited in the registry of the court to pay the plaintiff Jacobs' note in full should he prevail in the cause, thus removing and rendering moot all questions respecting the plaintiff's right to an injunction and leaving only the question as to whether the defendant Reisman has a legal right under the provisions of the security deed to tack on to the original debt his claim against the construction company.
393 (3) (3 S. E. 2d 667). It follows that the trial judge erred in sustaining the general demurrer.
Judgment reversed. Gardner, P. J., and Townsend, J., concur.