Claxton Bank v. Smith

Aug 21, 1925
16035
Versions:34 Ga. App. 265
129 S.E. 142
1925 Ga. App. LEXIS 213
Jenkins, P. J.

1. A person ordinarily is presumed to know the legal effect of an instrument that he has signed. Accordingly, where the maker of a collateralized note is in possession of a copy thereof, or where it fails to appear that the holder of the instrument employed deceitful or fraudulent means to prevent the maker from inspecting the original, and where no confidential relation exists between the maker and the creditor, the mere assertion by the holder of such a note, which does not contain a waiver of the thirty-days notice to sell the collateral as provided by law, that he has the right to immediately sell the property pledged, must be treated as a mere legal opinion or conclusion, and not as constituting legal fraud. Hill v. Sullivan, 63 Ga. 127 (2), 139; Clarke v. Ingram, 107 Ga. 565, 571 (33 S. E. 802) ; Hart v. Waldo, 117 Ga. 590, 591 (43 S. E. 998); Tolbert v. Caledonian Ins. Co., 101 Ga. 741 (28 S. E. 991); Whitehurst v. Mason, 140 Ga. 148, 153 (78 S. E. 938); Floyd v. Taylor Cotton Co., 26 Ga. App. 96 (105 S. E. 646), 26 C. J. 1207, 1208, 1210.

2. The portion of the evidence which was undisputed demanded a finding that the title to the collateral property passed to the plaintiff bank in part payment of the defendant’s previous past-due indebtedness at the time the note sued on was given for the remainder of said indebtedness, at which time the evidences of such prior indebtedness were marked satisfied, canceled, and surrendered. Consequently the ■defendant was not concerned as to when the collateral was sold, and *266was not entitled to tlie benefit of any possible enhancement in value, of the .surrendered collateral.

Decided August 21, 1925.

Judgment reversed.

Stephens and Bell, JJ., concur. B. M. Girardeau, W. T. Burlchalier, J. T. Grice, for plaintiff. A. 8. Way, TS. 0. Collins, P. M. Anderson, for defendant.