15 S.E.2d 194 | Ga. | 1941
1. The superior court has power during the same term at which an order or judgment is rendered, to revoke or vacate it for meritorious cause.
(a) Such power is not lost during the term merely because the time for excepting to the judgment directly by writ of error has expired.
(b) Where an order sustaining a general demurrer to a petition is rendered *301 during the period of a regular term of the superior court, though actually passed at chambers or in vacation, the judge acting in open court during the same term may, on due application, and after notice and hearing, vacate or revoke it for sufficient cause, as though it were itself a term order.
(c) In view of the testimony as to illness of the plaintiff's counsel, and other evidence, it can not be said that the judge abused his discretion in setting aside the judgment sustaining a general demurrer and dismissing the plaintiff's action, rendered during the illness of such attorney, after the case had been taken under advisement by the judge.
2. The petition of a married woman for injunction to restrain exercise of a power of sale contained in a security deed, and for cancellation of such deed, on the ground that it was made by her to secure a debt owed the defendant by her husband, stated a cause of action.
(a) Under the allegations, the principle that he who would have equity must do equity was not applicable.
(b) The petition shows, not that the plaintiff purchased the land subject to a debt or encumbrance which she assumed as part of the purchase money, but that the deed was taken by the defendant bank as security for a debt of the plaintiff's husband.
(c) The allegations as to fraud were immaterial, nor does any reason appear for applying the principle of estopped.
(d) After setting aside the former order sustaining the general demurrer and dismissing the action, the court erred in again sustaining the demurrer, since the petition stated a cause of action, and the demurrer should have been overruled.
1. We deal first with the cross-bill of exceptions. The original order sustaining the general demurrer was dated November 26, 1940, and appeared to have been entered "at chambers, Hazlehurst, Ga." The petition to vacate it was filed on January 25, 1941, and contained the following allegations: On October 15, 1940, plaintiff's counsel, Honorable Wade H. Watson, submitted to the judge two amendments to her original petition. On November 24, 1940, Mr. Watson "was taken suddenly ill, and since said date has been totally unable to attend to his practice or represent his clients." At the time the judge entered the order of November 26, dismissing the action, he was unaware of the illness of Mr. Watson. The plaintiff did not learn of such order until some time in the following January, when she "saw" in a newspaper that the property was again being advertised for sale. She immediately procured additional counsel, since Mr. Watson "could no longer represent her." The petition to vacate further alleged that the original petition and "said two amendments" had been lost, and prayed for rule nisi calling on the defendant to show cause why copies should not be established in lieu of the lost originals, and "why the order of the court, dated November 26, 1940, on the general demurrer should not be vacated and set aside, and a new order entered on said demurrer, dated as of the date of the hearing hereon." The defendant demurred generally and specially to the petition to set aside the judgment, and filed an answer. On January 29, 1941, after hearing evidence pro and con, and considering the demurrers, the judge passed an order setting aside the former order. It appears that although he considered the demurrers he did not expressly rule thereon, and there is no assignment of error on his failure to do so. The defendant in its cross-bill of exceptions makes the following contentions: That under the pleadings and the evidence the judge abused his discretion; that he had lost jurisdiction, for the reason that the original order was entered in vacation, and more than thirty days, the period for excepting thereto, had expired before the petition to vacate it was filed; and finally, that while the order vacating or setting aside the former judgment was a term order passed during the October term, 1940, the rule as to the power of the court to set aside a judgment rendered at the same term would not apply, as here, to a previous vacation order.
The evidence supported the allegations as to the illness of the *303
plaintiff's attorney, the judge's unawareness of it, and the plaintiff's ignorance of the order dismissing her case until some time in January. In the circumstances it can not be said that the judge abused his discretion, so far as related to the issues of fact. Nor did the judge lose jurisdiction to set aside his original order, merely because the time for excepting thereto had passed, if he otherwise had authority to deal with it as though it were an order passed during the same term. The superior court has plenary power over its orders and judgments during the term at which they are entered, and may amend, correct, or revoke them, for the purpose of promoting justice. Berrien County Bank
v. Alexander,
In what has just been stated, we have merely assumed that the rule as to control of judgments during the term is applicable. We next consider whether this rule does apply, in view of the fact that the original order sustaining the general demurrer was rendered at chambers or in vacation. There is a kind of negative pregnant to the contrary in Butters Manufacturing Co. v.Sims,
2. Did the original petition as amended, in which the plaintiff sought injunction and cancellation, state a cause of action? In other words, was it error to dismiss such action on general demurrer? The petition as amended, sometimes hereinafter referred to merely as the petition, was very lengthy; and although some quotations will be made, we shall endeavor mainly to state its substance only. It was also indefinite in some respects, but there was no special demurrer; and after reading it carefully several times we have reached the conclusion that it was sufficient to show, as it was evidently designed to do, that the security deed held by the defendant bank and under which it was proceeding had as its consideration a debt of the plaintiff's husband, she being a married woman, and that because of this fact the deed was void and subject to cancellation. Counsel for the defendant argue the contrary, contending that on proper construction of the petition it should be taken to mean that the plaintiff purchased the land subject to a debt of her husband relating thereto, which she merely assumed as a part of the purchase-money. This particular contention will be deferred for later consideration in this opinion.
A "wife . . may not bind her separate estate by any contract of suretyship nor by any assumption of the debts of her husband, and any sale of her separate estate, made to a creditor of her husband in extinguishment of his debts, shall be absolutely void." *306
Code, § 53-503; Carlton v. Moultrie Banking Co.,
It is insisted by counsel for the defendant that the action was properly dismissed on demurrer, for the reason that it appears that the defendant bank did advance to the Federal Land Bank the sum of $700 as a cash payment, and that the plaintiff can not now obtain the equitable relief prayed for without refunding this sum to the defendant, which she has not done or offered to do. We can not sustain this contention. While on casual reading of the petition it may leave the impression that either the bank or Stafford acting for it had paid this sum as an "advance" on the purchase-price, *308 and the plaintiff in taking the deed from the bank merely assumed the remainder, yet on careful study of the petition and amendments we construe the allegations as meaning only that Stafford had reported to the plaintiff or her husband that this sum had been paid, when as a matter of fact nothing whatever had been paid on the purchase-price either by Stafford or the bank, and that no obligation had been made or assumed by either for the payment of any part of such purchase-money. The petition several times refers to "what he [Stafford] claimed to have paid on the purchase-price," not to anything which either he or the bank had actually paid or promised the seller to pay. (Italics ours.) This is made clear by the allegations which appear in paragraph 17 of the petition, as follows: "Petitioner further shows, that the debt for which said security deed is given is the debt of her husband, and that the same does not represent any part of the purchase-price which she was to pay for said land, that the price she was to pay for said Federal Land Bank property is ample and about what it was worth, and that as a matter of fact she has ascertained the fact to be, and she hereby alleges, that the said D. N. Stafford did not pay to the Federal Land Bank any part of the purchase-price, but executed to the said Federal Land Bank notes and security deed over said land for the full amount of the purchase-price which she was to pay said bank in the sum of $3139.67, which indebtedness she assumed in making the purchase of said land and has been paying thereon to the amount of approximately $1100. Petitioner alleges that the Baxley State Bank has no right whatsoever to proceed to collect said notes or to proceed and sell your petitioner's property, either her individual property put up as security or her equity in the Federal Land Bank property which she bought; that said notes and security are without consideration as against this petitioner, and the debt is wholly the debt of her husband. She is entitled to have the court of equity intervene and restrain said sale, because she is a married woman and is not required to pay or assume her husband's debt; and further, being without consideration, it would be very unjust to require her to do so and thus carry out a scheme and plan to defraud your petitioner, as heretofore alleged upon the part of the Baxley State Bank and D. N. Stafford, to take your petitioner's property and rights of property in payment of her husband's debt." *309
In the first amendment reference is again made to "the amount of $700 in cash which he, the said Stafford, claimed he had to pay on the purchase-price, but which she [the plaintiff] later learned he did not pay." In the same amendment the plaintiff further alleged that "said security deed and note is without any consideration whatever, and it was given to secure the amount of her husband's debt, and has no other consideration, and is void." In the second amendment the plaintiff alleged that since the filing of her original petition she had learned that Stafford, in making the trade with the Federal Land Bank, had "paid out the sum of $50 in cash" and had paid "taxes then due on the property" amounting to about $700, "which said payments were a part of the purchase-price," and she "hereby agrees that judgment be rendered in favor of" the defendant for these sums. The third amendment struck the second amendment entirely, and alleged on the contrary that on investigation "petitioner has ascertained that the payments were not made by the said Stafford as claimed by him in buying the property for her, and she does not agree that the items as specified in said [second] amendment were paid by said Stafford or defendant bank, and denies that she is liable for the items mentioned therein." The third amendment contained still other allegations, and again mentioned the amount "which was to be paid in cash for which she [the plaintiff] understood she was giving the security deed, and the balance assumed by her, which she understood was the amount due the Federal Land Bank, less the said cash payment as heretofore stated," but there is nothing in this amendment which can properly be taken as withdrawing or qualifying the original allegation to the effect that nothing had been paid either by Stafford or the bank on the purchase-money. This amendment appears to have been made merely for the purpose of offering to pay the taxes and the small sum of $50 referred to in the second amendment, if it should "be established by proof" that these payments had been in fact made, but petitioner "does not admit such payments were made as mentioned in the [second] amendment, all of which is hereby stricken."
Nor did the fourth and final amendment have the effect of retracting or changing the original allegations in reference to the cash payment which she understood the bank or Staffordwould make, but which she alleged was never made by either of them; *310
the allegations of this amendment being as follows: "Petitioner amends by alleging that after she signed the note and security deed which she understood to be for $700 to procure the said amount in cash to be applied on the purchase-price of the Federal Land Bank land for $3139.67, and assume the balance of the said purchase-price, she did [not] know or learn of different amount of the deed, or that the same was given to defendant bank and for the larger amount and for her husband's debt, as in said petition set out, until the defendant bank began advertising said lands for foreclosure, and at that time she had paid out on the Federal Land Bank debt which she had assumed $1000 or more, reducing the principal; and besides, under her understanding of purchase, the Baxley State Bank had nothing in said property and so far as shelearned had not put out anything on said property, and therefore she could not afford to tender said land back to the Baxley State Bank, for the reason that it was not entitled to have deed to same according to her understanding of the trade, which she understood prior thereto was made entirely by and through Stafford, and to tender said land to said defendant bank would have caused her to lose all she had paid out on said land on the debt for the purchase-price which she had assumed to said Federal Land Bank." (Italics ours.) This amendment appears to have been made for the purpose of avoiding some contention that the land purchased through the bank ought to have been restored to the bank as a condition precedent to grant of the relief sought, and it can not reasonably be construed as showing any payment on the purchase-money by the defendant, contrary to the denial of such payment as contained in the original petition. If the petition had shown upon its face, either expressly or impliedly, that any part of the purchase-money had been paid by or for the bank, or that any binding obligation for such payment had been made, it may be true that the plaintiff could not maintain the action for equitable relief without averring a repayment of this sum or a tender thereof before suit, or alleging some valid reason for her failure to do so. Code, § 37-104; Echols v. Green,
In the same connection it is insisted by counsel that it appears from the petition that the plaintiff is seeking cancellation or rescission of a contract of sale in reference to the Federal Land Bank or Upchurch tract, and that she can not have the equitable relief for which she prays without vacating this property and restoring it to the defendant or alleging a tender or offer to do so. Nor can we sustain this contention. It is true that the plaintiff wobbled a little in her fourth amendment with respect to this matter. She alleged that she could not afford to tender the land back, because she would lose what she had paid on the purchase-price to the Federal Land Bank. Now, this might not be a good reason for her failure to restore this property, if the other circumstances were such that she ought to have done so. Equity could have molded a decree to protect her interest. Code, § 37-1203; Pope v. Thompson, supra. Yet the fact that she gave a poor reason did not place upon her a duty which did not otherwise rest upon her in equity. She is not seeking to cancel the deed which she received from the bank, conveying this property to her, subject to the purchase-money due to the Federal Land Bank. She is asking no relief whatever in regard to that instrument. What she is attempting to do is to enjoin the bank from selling this property and the other tract under a security deed alleged to have been made solely for a debt of her husband. If her allegations with respect to the latter deed be true, she is entitled to have this deed canceled, without reference to the deed representing her purchase. The latter transaction, according to the petition, is valid, and she is seeking to stand by it. There is no reason in law or in equity why she can not do so, and at the same time cancel the invalid deed conveying her equity in the land to secure the debt of her husband. So our *312 conclusion is that the petition did not require a tender of money or of land; and that it stated a cause of action, unless it was defective for some other reason yet to be considered.
Under the specific allegations of fact, it does not appear that the plaintiff purchased this land subject to a debt of her husband existing at the time as a claim against it, as contended. Accordingly, we can not apply decisions like those in Daniel v.Royce,
Nor does the petition show any reason why the plaintiff should be estopped. The allegations reasonably show that every fact and circumstance of which she now complains was fully known to the bank or its officer, Mr. Stafford. In such case, there would be no place for the principle of estoppel.
Another contention is that the plaintiff is seeking rescission and should restore the status. This contention has already been mentioned incidentally. She is not attempting to rescind the contract by which she purchased the land, but is attacking a deed which she alleges was made solely to secure a debt of her husband.
Finally, it is urged that while the plaintiff complains of fraud and misrepresentation, she does not allege any specific facts constituting fraud, nor does it appear that she can not read and write. The insistence seems to be that since it must be inferred that she was able to read and write, and understand the transaction fully, she has no valid ground of complaint. It is unnecessary to allege fraud in order to cancel a deed which is void because it was given by a wife to secure a debt of her husband. The Code, § 53-503, does not so qualify her right, but simply declares that any such transaction "shall be absolutely void." It matters not whether the plaintiff was defrauded, or whether she had full and intelligent knowledge of the transaction. It is enough to show that the deed was made or taken to secure an actual debt of her husband; and this shown, the plaintiff would be entitled prima facie to the relief of cancellation, and also to injunction, where the defendant is proceeding *313 against the land, as alleged in this case. The petition stated a cause of action, and the court erred in dismissing it on general demurrer.
Judgment reversed on the main bill of exceptions, andaffirmed on the cross-bill. All the Justices concur.