Wingo v. Manufacturer's National Bank of Newnan

219 Ga. 302 (1963)

133 S.E.2d 15

WINGO v. MANUFACTURER'S NATIONAL BANK OF NEWNAN et al.

22199.

Supreme Court of Georgia.

Argued September 11, 1963.

Decided October 10, 1963.

William B. Jones, for plaintiff in error.

Glover & Davis, contra.

QUILLIAN, Justice.

The plaintiff in this action sought to enjoin the enforcement of a dispossessory warrant against her husband through which she would also be ousted. She also prayed for the appointment of a receiver and that she be decreed to be entitled to a one-half undivided interest in the property from which she was to be dispossessed. Her cause is predicated upon the allegation that a warranty deed which she and her husband executed to one Manget and which he transferred to one of the defendants in this case was actually only intended to secure a debt and was in effect a security deed. The plaintiff failed to make either Manget or her husband a party to the suit. The trial judge sustained demurrers pointing out this defect and dismissed the petition. Held:

Although the plaintiff did not pray for reformation of the warranty deed in question, the consequences of adjudging the instrument a mere deed to secure debt would be the same in *303 effect as a reformation of the deed. Hamiltion v. Cargile, 127 Ga. 762, 766 (56 SE 1022). Since all persons having a legal or equitable interest in the subject matter of a suit must be made parties, "no court of equity should undertake to reform a written instrument conveying title to property, in an essential manner, without having before it all the parties to be affected by the proposed reformation." Wyche v. Green, 32 Ga. 341, 345. The grantor and grantee of the deed were proper, necessary and indispensable parties, Volunteer State Life Ins. Co. v. Powell-White Co., 196 Ga. 372 (1) (26 SE2d 815), Linder v. Ponder, 209 Ga. 746, 747 (75 SE2d 814), and the failure to make them parties in the suit rendered the petition subject to the criticism of the defendants' demurrers. Sowell v. Sowell, 212 Ga. 351 (92 SE2d 524); Coleman v. McAdams, 214 Ga. 616 (106 SE2d 840).

Judgment affirmed. All the Justices concur.