Askew v. Thompson

Aug 15, 1907
Reporters:
, ,
Before:
Fish
Fish, C. J.

(After stating the facts.) 1. In the original petition the plaintiff alleged an obligation on the part of the defendant to reconvey the land covered by her deed to him, “upon her repayment to him of the sum of $500.00 with interest thereon from the date of the deed;” that she had remained in possession of the land ever since she conveyed it to defendant, receiving the rents and profits thereof, with his knowledge and consent, subject only to the payment to him of “Said indebtedness;” and that she had tendered to him “the full amount of the principal and interest due upon said indebtedness.” The original petition clearly indicated that the sum of $500 was an indebtedness which the plaintiff owed to the defendant, and that upon its payment the defendant had agreed to reconvey the land to the plaintiff. This being true, the clear inference was that the deed was given as security for the indebtedness. The amendment merely added an explanation as to how the indebtedness uf $500 arose, that is, bjr reason of a loan made by defendant to plaintiff, which the deed was executed to secure. The cause of action set out in the original petition was the alleged right of the plaintiff to have the land reconveyc-d to her by the defendant, by reason of his contract so to do, upon the payment by her to him of a given amount of indebtedness, which she owed him. If he agreed, when she eon.veyed the land to him, to reconvey it to her upon “her repayment to him” of a given amount, a strong inference arose, as we have said, that her conveyance was executed as securitjr for the debt. The amendment merely explained how the indebtedness arose. The amendment, therefore, did not change or vary the nature of the suit, nor introduce a new cause of action. City of Columlus v. Anglin, 120 Ga. 785 (5), 789=794 (48 S. E. 318); Central Ry. Co. v. Hunter, 128 Ga. 600, (58 S. E. 154).

2. Nor should the amendment have been disallowed on the ground that “the same was an attempt to vary by parol the written terms of said deed.” As we have seen, the plaintiff never gave up possession of the land she conveyed to the defendant, but has ever remained in possession since the execution of such conveyance. Civil Code, §2725, provides “A deed or bill of sale, absolute on its face and accompanied with possession of the property, shall not be proved (at the instance of the parties) by parol evidence to be a mortgage only, unless fraud in its procurement is *328the issue to be tried.” The clear implication of this language is that a deed absolute on its face, when not accompanied by possession in the grantee, may be proved by parol to be a mortgage only. Denton v. Shields, 120 Ga. 1076 (48 S. E. 423). In Hester v. Gairdner, 128 Ga. 531, 58 S. E. 165, it was held: “Where a deed in the form of a warranty deed was given to secure an indebted-” ness, and no bond to reconvey was made, and there was nothing in the written contract to fix the amount of indebtedness secured, but the deed expressed a certain amount as a consideration thereof, in a suit by the grantee against the grantor or his administrator, seeking a general judgment and also to establish a lien on the property, it was competent to show by parol evidence that the deed was given to secure an indebtedness already existing to the amount expressed as a consideration, and also to secure future advances to be made.” The conveyance made by the plaintiff, though in form an absolute deed, could be shown by parol evidence to be a security deed only, as the grantee never had possession of the premises conveyed. The plaintiff in error cites Waters v. Waters, 124 Ga. 349 (52 S. E. 425). There the plaintiff sought to engraft upon a deed of bargain and sale (which she had waited too long to set aside on the ground of fraud) a parol agreement made contemporaneously with its execution, to the effect that she was to be allowed to remain in possession and-control of the deeded premises during her life. The deed being an unconditional conveyance passing title to the entire fee, without any hint of a reservation of a life-estate, this court held that the deed would have to be reformed before the plaintiff could assert any interest in the land. In the present case, there is no attempt to vary the terms of the deed or to limit its operation as a legal conveyance passing the entire fee, but the plaintiff is simply asserting her equity of redemption.

3. The ground of demurrer that the petition, as a whole, was “’too general, vague, uncertain, and indefinite,” was itself “too general, vague, uncertain, and indefinite” to raise any question for decision by the court. Dawson v. Equitable Mortgage Co., 109 Ga. 389 (34 S. E. 668); Mathis v. Fordham, 114 Ga. 369 (4) (40 S. E. 324). The demurrer should have specified wherein the petition was not sufficiently full and explicit.

4. The special deinurrers, that the contract was not fully and *329•clearly set out, was wanting in mutuality, the purpose for which the deed was executed was not explained, nor the consideration which plaintiff received for executing the deed alleged, were all fully met by the amendment allowed to the petition. Nor was there any merit in the special demurrer that the petition failed to •show that any certain sum was tendered, or that any other proper tender was made. The petition, in effect, alleged that the plaintiff was indebted to the defendant in the sum of. $500, with interest thereon from January 25, 1889, and that she, on October 4, 1905, tendered to defendant “the full amount of the principal ■‘and interest due upon said indebtedness.” A continuing tender ,-and offer to pay the amount of such indebtedness into court was .also set forth. It was not essential, in order that the defendant might be put on notice of what he was expected to meet, that the plaintiff should allege how much, in dollars and cents, she tendered to him on the day named.

The petition set forth, with sufficient clearness and particularity, ■a cause of action, and the court properly overruled the demurrers.

Judgment affirmed.

All the Justices concur.