Jennings v. Marlin

Atkinson, J. 1. It is declared in the Civil Code (1910), § 5527, that: “All petitions for equitable relief shall be filed in the county of the residence of one of the defendants against whom a substantial relief is prayed.” 2. “In a petition for injunction, cancellation of deeds, and other equitable relief, in which it is sought to have a conveyance of land delivered up [75] and canceled, the grantee in the deed is a necessary party as well as the grantor. And the petition could be brought in the county of the residence of the grantee or in that of the grantor.” Taylor v. Colley, 138 Ga. 41 (74 S. E. 694). No. 4439. February 27, 1925. 3. The adjudication of a grantor as a bankrupt does not alone deprive him of all substantial interest, so that the venue of an equitable suit instituted against him and his grantee who resides in a different county in the State, to cancel the deed, may not be laid in the county of his residence. Peoples Bank v. Fidelity Loan & Trust Co., 155 Ga. 619 (4) (117 S. E. 747). 4. Accordingly, where a devisee of an undivided interest in the estate of the testator executed a warranty deed to his brother, purporting to convey such interest in consideration of one dollar, and subsequently the grantor was formally adjudged a bankrupt, a petition by the trustee in bankruptcy against the grantor and the grantee and the executor of the estate, seeking to cancel the deed and to enjoin the executor from turning over the property described in the deed to the grantee or to any other person except the petitioner, which alleged that the grantor resided in the county in which the suit was brought and that the grantee resided in a different county in the State, was not subject to a separate demurrer interposed by the grantee, which alleged that it appeared on the face of the petition that the court was without jurisdiction as to that defendant. 5. ' The trial judge did not err in overruling the demurrer to the petition. Judgment affirmed. All the Justices concur. H. A. Wilkinson, for plaintiff in error. W. B. Parks, contra.