LaRoche v. Kinchlo

Hill, J. (After stating the foregoing facts.) As against a general demurrer we think the petition set forth a cause of action, and that the court did not err in overruling the demurrer. It is argued that there is llo allegation in the petition that the plaintiffs are the children of Hardee, the life-tenant, or that they claim under his children, nor is there any allegation that I-Iardee did not have any children. The petition alleged that the plaintiffs are the residuary legatees of W. H. Stiles, deceased, and in effect that as such residuary legatees they are entitled to the property. As against a general demurrer we think this is a sufficient allegation, in connection with the other allegations of the petition, to entitle the plaintiffs to the relief sought. If the defendant desired fuller information, he should have demurred specially. It is further argued that it is not alleged that the sum of $363.72 is the amount paid by the defendant for the land, plus the ten per cent, penalty allowed by law, but that this amount is the principal and interest on the money paid.by the defendant. The plaintiffs allege that the above amount -is the sum, principal and interest, due the defendant as the money paid for the property at the tax sale; and we think, as against a general demurrer, this allegation is sufficient. It is contended by the plaintiff in error that the allegation as to the tender of the amount of money paid by the defendant for the land, with the interest thereon, is not a sufficient allegation of tender; and he cites the case of Williams v. Shuman, 141 Ga. 114 (80 S. E. 625), as supporting his contention that an offer to pay in the petition is not a tender. But the facts of the Williams case and the [298] instant one aro different. Here the plaintiffs allege that they were prevented from making a tender to the defendant, because of his illness on the last day of the year in which they could make the tender; and therefore they allege that they tender the amount due into court, or such other amount as may be found to be due. We think this allegation, as against a general demurrer, is sufficient. Judgment affirmed. All the Justices concur.