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Cancellation. Fulton Superior Court. Before Judge Moore.
COOK, Justice.
1. A citizen and taxpayer has the right to bring an action to cancel a deed executed by a city in exchange for a warranty deed purporting to convey described property, which property already belonged to the city.
2. The courts will not control the discretion of a municipality in disposing of its property unless such discretion is manifestly abused.
Howard B. Watson, as a resident, citizen, and taxpayer of the City of East Point, brought a petition in two counts against the City of East Point and Paul Wilson, seeking to cancel and declare null and void a deed from the City of East Point to Paul Wilson conveying described property, and to enjoin Wilson from encumbering, leasing, or disposing of the property.
In the first count it was alleged that: The Council of the City of East Point by a majority vote passed a resolution to exchange described property with Wilson. The city executed a warranty deed to him, which conveyance was without adequate consideration "other than the receiving from Paul Wilson of a warranty deed" conveying to the city a tract of land shown by an exhibit attached to the petition, "said land already belonging to the City of East Point." The property conveyed to Wilson has a market value of $9,150, and the petitioner will suffer loss and damage from the loss of this property in that the treasury of the city will be deprived of this sum, which could be applied to the operation of the city, for which the petitioner is paying taxes. The property conveyed to Wilson was used and dedicated to the city for park purposes, and the petitioner is deprived of the use of this property for park purposes.
The second count incorporates the allegations in regard to the resolution of the council to exchange property with Wilson, but omits the paragraph alleging that the only consideration for the exchange of property was the warranty deed from Wilson to the city, conveying property "already belonging to" the city. This count alleged the value of the property to be $9,150, and further alleged that the resolution to exchange property with wilson did not conform to an ordinance of the city attached as an exhibit to the petition.
Also attached as exhibits to the petition were the minutes of the city council showing the decision of the mayor and council, by a vote of five to four, to exchange property with Wilson; the warranty decal from Wilson to the city; and the warranty deed from the city to Wilson.
General demurrers were sustained to both counts of the petition, and it was dismissed. The appeal is from this judgment.
1. In the first count of the petition it is alleged that the exchange of property by the deeds between the City of East Point and Paul Wilson was without adequate consideration to the city because the land purported to be conveyed by Wilson to the city already belonged to the city. On general demurrer we must deal with allegations of ultimate facts as true. An allegation that a party is the owner of specified land is an allegation of an ultimate fact and not a conclusion of law. Domin v. Brush, 174 Ga. 32 (1) (161 SE 809); Gray v. Bradford, 194 Ga. 492, 494 (1) (22 SE2d 43); Weiner v. Cauble, 214 Ga. 634, 637 (106 SE2d 781); Teasley v. Jones, 215 Ga. 135 (1) (109 SE2d 514); Nuckolls v. Merritt, 216 Ga. 35, 38 (114 SE2d 427).
Section 147 of the Act of 1957 establishing a new charter for the City of East Point provides: "Said city shall have power and authority to rent, lease, sell and dispose of any or all of its parks or other real estate for a fair and adequate consideration," the city would be acting without authority to convey park property in exchange for property which it already owned.
Counsel for the appellees assert that the appellant has no standing as a citizen and taxpayer to maintain this action. A citizen and taxpayer has a right to bring an action to nullify the deed of a city illegally disposing of its property to the detriment of its citizens. Compare Mayor &c. of Americus v. Perry, 114 Ga. 871 (6) (40 SE 1004, 57 LRA 230); Dancer v. Shingler, 147 Ga. 82 (2) (92 SE 935); Thomas v. Ragsdale, 188 Ga. 238 (3 SE2d 567); Georgia Power Co. v. Georgia Public Service Comm., 211 Ga. 223, 230 (85 SE2d 14).
It was therefore error for the trial judge to sustain the general demurrers to count one of the petition.
2. The ordinance of the City of East Point attached as an exhibit to the petition provides in part: "Except as otherwise provided by law, no purchase or sale contract in excess of $1,000 may be lawfully made by said city without first obtaining competitive sealed bids, unless in emergency makes it unwise to take necessary time to secure such bids. In all purchases the city shall accept the lowest and best bid if it accept any, and in all sales by the city the highest and best bid shall be accepted if any are accepted; but the city shall in all cases reserve the right to reject any and all bids; provided, this Section shall not apply to marshal's sales if an owner's rights to redeem exist after such sale, but it shall apply to all public improvement contracts, and to all other real estate sales, but shall not apply to real estate purchases, nor to any other contract if its application thereto would clearly increase the city's cost . . ."
This ordinance does not make it mandatory for the city to obtain competitive bids in all sales of real estate, and the ordinance does not apply to real estate purchases. There is no allegation of fraud, and no facts are alleged to show an abuse of discretion by the city in making the exchange of property with Wilson without advertising for competitive bids. The courts will not control the discretion of a municipality in disposing of its property unless such discretion is manifestly abused. Chipstead v. Oliver, 137 Ga. 483 (73 SE 576); Kirkland v. Johnson, 209 Ga. 824 (5) (76 SE2d 396); J. C. Lewis Motor Co. v. Mayor &c. of Savannah, 210 Ga. 591 (5) (82 SE2d 132).
The trial judge did not err in sustaining the general demurrers to the second count of the petition.
Archer, Patrick & Sidener, Ezra Phillips, James H. Archer, Jr., for appellees.
Bartholomew & White, James A. White, Jr., for appellant.
Friday May 22 19:46 EDT

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