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Equitable petition. Fulton Superior Court. Before Judge Pharr.
QUILLIAN, Justice.
1. The allegations of the instant petition were sufficient to show a modification of the time installment payments under a security deed were to be made, which quasi-contract was binding on the defendant until she gave reasonable notice that strict compliance with the original terms would be required.
2. Since equity will not require a useless formality, the trial judge erred in holding that the plaintiff had not made the requisite tender.
3. Averments that a party was the widower of another were allegations of ultimate facts and not conclusions of the pleader.
Lucille Broadnax Murry brought a suit against Nera Lett in Fulton Superior Court seeking to have a foreclosure sale of certain described property vacated and set aside. The pertinent allegations of the petition as amended regarding the right of the plaintiff to bring the petition are as follows: that Floyd Foster and Annie Ackerman were married in January, 1946, at which time Annie Ackerman was married to Felder Ackerman from whom she had been separated since 1927; that as a result of the ceremonial marriage "a common law relationship was created between them"; that upon the death of Felder Ackerman in April, 1962, the second marriage "became legal by operation of law."
The petition recited: "Continued cohabitation after the removal of an impediment to an invalid [sic] marriage which the parties contracted in good faith creates a valid informal or common law marriage in jurisdictions which recognize such marriages." However, the petition failed to allege that the parties contracted the second "marriage" in good faith or that there was continued cohabitation after the disability ceased to exist.
As to the alleged common law marriage there were further averments that after the abortive ceremonial marriage Annie Ackerman was insured under the name of Annie A. Foster, although she also continued to use "Annie Ackerman" for some business transactions; that the defendant, an alleged foster child of Foster and Annie Ackerman, gave the name "Annie Ackerman Foster, wife of Floyd Foster," in furnishing information to the Bureau of Vital Statistics; that she had lived with the parties and was "in position to know the facts"; that on the day of the conveyance of the property in question from Foster to the plaintiff, the defendant gave a quitclaim deed to Foster (the details as to what property or other relevant contents of the deed not being specified) which recited she was the "virtually adopted daughter" of Annie Ackerman, that Foster was Annie Ackerman's widower, and as such they were the "sole heirs at law of Annie L. Ackerman."
Regarding the grounds to vacate the sale, the averments of the petition were that: on an undisclosed date Floyd Foster and Annie Ackerman bought the property in question "in the name of Annie Ackerman"; in February, 1962, Annie Ackerman secured a second loan on the property from Housecraft which was transferred to Securities Investment Company; for over a year the payments were consistently some days in arrears but were accepted and credited; Annie Ackerman died in December, 1962; in January, 1963, Floyd Foster conveyed the property to the plaintiff by warranty deed, duly recorded, reserving a life estate in himself; in March, 1963, Foster died leaving the plaintiff the holder in fee of title; after Foster's death the plaintiff continued to pay the monthly installments some days later than the due date, "as previously established by precedent," even on occasion as much as 32 days in arrears; after the July 18, 1963, payment was due, on August 7, 1963, the defendant, through her attorney, paid off the balance due on the mortgage, had the loan transferred to her and on August 9, 1963, instituted foreclosure proceedings; on August 14, 1963, the plaintiff tendered the July payment late, as was previously established by the parties' action; the plaintiff had no notice that future monthly installments would be required on the due date; on August 26, 1963, the check covering such payment was returned to the plaintiff, without comment, by the defendant's attorney; on some undisclosed date the foreclosure sale was had, at which time the defendant bid in the property.
On oral motion to dismiss made by the defendant, the trial judge dismissed the petition, citing Miller v. Levenson, 212 Ga. 496 (93 SE2d 753). The Miller case held that where the petition showed that a secured debt was past due when the suit was filed, and there was no allegation in the petition that the amount due was paid or tendered to the holder of the note prior to the institution of the litigation, the petition failed to state a cause of action for the relief sought.
The plaintiff excepts and assigns error on the order sustaining the oral motion to dismiss.
1. "Where parties depart from the terms of a contract and receive or pay money under the departure, reasonable notice must be given to the other party of the intention to rely upon the exact terms of the contract before there can be any recovery for failure to comply with its exact terms. Until notice, such departure is a quasi new agreement." Verner v. McLarty, 213 Ga. 472, 475 (1) (99 SE2d 890), and cases therein cited. A purchaser who acquires a note after default of an installment "is not a holder in due course, but takes the instrument with notice of its dishonor, and subject to any defense or equity which could be pleaded as against the original payee." Verner v. McLarty, 213 Ga. 472, 476, supra, and cases cited. Therefore, it is clear that the allegations of the instant petition were sufficient to show a contractual modification which was binding upon the defendant as a subsequent transferee, until she gave the requisite notice of intent to require strict compliance with the terms of the original agreement.
2. The allegations set out that payment in the form of a check was tendered and returned without comment by the defendant's attorney. Even if we assume that such tender might have been returned because of an objection to the medium of payment, yet where the tender is rejected without specifying the basis of the rejection, the right to object is waived. Aggregate Supply Co. v. Sewell, 217 Ga. 407, 412 (2) (122 SE2d 580). It would be a useless formality, abhorrent to equity, to require the plaintiff to take further action where tender has been rejected and the prospective recipient, the defendant, has by course of conduct evinced a purpose to reject any subsequent tender. Miller v. Watson, 139 Ga. 29, 32 (76 SE 585); Burnam v. Wilkerson, 217 Ga. 657, 662 (4) (124 SE2d 389). Hence, the trial judge should not have dismissed the petition on the ground that there was failure by the plaintiff to make tender to the holder of the instrument prior to bringing the suit.
3. The suit being an equitable action to set aside the sale of certain property it was necessary that the petition set forth the plaintiff's right or equity in the property. The petition related that the plaintiff acquired her equity in the property by deed from Floyd Foster who inherited the same as the widower of Annie Ackerman. Thus, it became essential that the petition show that Foster was in fact the widower of Annie Ackerman. There were averments in the petition which undertook to show a common law marriage between Floyd Foster and Annie Ackerman existed prior and up to the time of her death. These allegations were too vague and inconclusive.
However, the direct declarations set out in the petition: "that immediately upon the death of said James [Felder] Ackerman, the ceremonial common law marriage of said Annie Ackerman and Floyd Foster became legal," and after the death of Annie Ackerman Foster "her widower, Floyd Foster, who was in feeble health conveyed the property . . . to plaintiff herein, reserving unto himself a life interest by warranty deed"--according to the holding of the five-justice case of Lefkoff v. Sicro, 189 Ga. 554 (11) (6 SE2d 687, 133 ALR 738), was sufficient. The Lefkoff case treats the allegations that certain parties are husband and wife as that of an ultimate fact and not as a conclusion of the pleader and holds: "The allegations that the plaintiff and the deceased were married were not subject to demurrer, as being a mere conclusion of the pleader. Brown v. Parks, 169 Ga. 712 (3) (151 SE 340, 71 ALR 271)."
The trial judge erred in sustaining the oral motion to dismiss.
Judgment reversed. All the Justices concur.
Philip T. Keen, contra.
R. P. Herndon, for plaintiff in error.
ARGUED MARCH 10, 1964 -- DECIDED APRIL 13, 1964.
Friday May 22 21:47 EDT

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