18 Ga. App. 45 | Ga. Ct. App. | 1916
Bond filed suit against Dixon upon five promisspry notes, and prayed a general judgment for the principal debt
It must- be admitted, of course, that a city court is without jurisdiction to grant affirmative equitable relief, and an appropriate special demurrer, directed to the word “decree,” would perhaps have required that word to be stricken and the verbiage of the petition to be changed so that the petitioner would ask that the judgment be “declared” to be a first lien upon the property. However, the demurrer, so far as it was pertinent, was general in its nature, squarely challenging the jurisdiction of a city court to set up a lien upon real estate in an action upon promissory notes, secured by a deed to the realty, in which the jurisdiction of the court to render a judgment upon the notes was undisputed, and where the debtor had admitted creating at least an inchoate lien upon the property in favor of the- plaintiff, by deeding it to him in accordance with the provisions of section 3306 of the Civil Code of 1910. In other words, the contention of the defendant in the lower court was that although the plaintiff might recover a judgment on his notes in the city court, he could not establish in that proceeding a lien upon the land conveyed to him to secure the notes, prior to the lien of other judgments against the debtor, except by proceeding to make a deed, reconveying the property to the debtor, and levying upon the land as the property of the debtor, although the deed might embrace (as it did in fact) an agreement
There is no merit in the point, raised by paragraph 2 of the demurrer, that the setting up of the plaintiff’s lien would be in effect foreclosing a mortgage upon realty, nor in the proposition that to establish the lien would be to grant affirmative equitable relief. The rights of a creditor whose debt is secured by deed from the debtor are fixed by a statute, which, while declaring that such conveyances pass the title to the vendee, evidently intended them to be treated as mere liens, except as between the contracting parties, when the rights of third persons only are to be affected. A deed executed under the provisions of section 3306 of the Civil Code is absolute in the sense that nothing can intervene to prevent the creditor from collecting his debt if the property really belonged to the vendor and is sufficient for that purpose, and in the sense that the vendor is entitled, upon payment of the debt to have title reconveyed to him. But while deeds executed under that section are expressly declared not to be mortgages, it is plain that the legislature, by declaring that they pass absolute title, intended to create a lien of high dignity. The title passes only “till the debt or debts which the said conveyance was made to secure shall be fully paid;” but deeds to secure debts are to be attested as mortgages, they may be cancelled as mortgages are can-celled, and liens against the vendee as owner of the title, which by reason of the placing of the title in him would otherwise attach to the property, are not permitted to affect the vendor’s right to a reconveyance or to become a cloud upon the property conveyed. Civil Code, § 3308 et seq.
In Pusser v. Thompson, 132 Ga. 282, Justice Lumpkin, harmonizing any apparent incongruity in the provisions in § 3306, which requires the courts to hold the security deed therein mentioned to be an absolute conveyance and not a mortgage, says (after referring to section 2723 of the Civil Code of 1895 (Civil Code of 1910, § 3256), which declares that “a mortgage in this State is only a security for debt, and passes no title”): “As a natural result of holding a mortgage to be a mere lien, other things might intervene and seriously interfere with the security. A power of sale contained in a mortgage was held to terminate upon the
The insistence in the third subdivision of the demurrer, that the court was without jurisdiction to declare that a judgment upon the plaintiff’s notes should have a first special lien upon the land, because this would be a matter “respecting title to land” (Civil Code, § 6510), has been ruled adversely to the plaintiff in error. Guarantee Trust &c. Co. v. American National Bank, 15 Ga. App. 778 (84 S. E. 222). As pointed out in that case, it was held in Wheatley v. Blalock, 82 Ga. 406 (9 S. E. 168), that a proceeding to establish a lien on real estate is not a “ease respecting titles to land.” The same thing, in effect, was held by this court in Young v. Germania Savings Bank, 5 Ga. App. 130 (62 S. E. 999), and Edenfield v. Bank of Millen, 7 Ga. App. 645 (67 S. E. 896). There are many liens which may be asserted against property without regard to its ownership, though, of course, the true owner of the real estate could defeat any lien against the property which depended for its existence upon a conveyance by a vendor who had no title himself. A question such as this, however, is not presented when, as in the present case, only the vendor and the ven
2. The plaintiff demurred to the second paragraph of the defendant’s answer, as originally filed, as insufficient to set up any defense. This paragraph was as follows: “Tor further plea and answer in this behalf, defendant shows the court that the alleged notes and deed were wholly without consideration, and.are therefore null and void, and are unenforceable in this action.” The passage of the ileal act emasculated pleas of general issue, and, 'as a consequence, “where, in an answer by paragraphs to a petition bringing suit on promissory notes, the defendant makes, in answer to one of the paragraphs, a general denial of the indebtedness, but such answer nowhere sets up any legal defense, answer is properly stricken on demurrer.” Thomas v. Siesel, 2 Ga. App. 663 (7). See also Johnson v. Cobb, 100 Ga. 139 (2) (28 S. E. 72); Pyron v. Ruohs, 120 Ga. 1060 (5). The defendant’s answer wholly failed to inform the court how or in what respect the consideration had failed, and therefore was properly stricken.
3. The defendant filed an amendment to his answer, in which amendment he alleged that the notes and the deed were given in consideration of a certain motorcycle, “and plaintiff’s representations and promises in connection therewith, and without any other pretended consideration, . . the said notes and deed not speaking or purporting to speak the entire contract,” and that the representations and promises, which were fully set forth in the plea, were in parol. The defendant then proceeded in the amendment to set forth various parol representations alleged to have been made by the plaintiff to induce the defendant to purchase the motqrcycle, and averred that he purchased it upon these representations, relying upon their truth, when in fact they were false and known by the plaintiff to be false. In another paragraph of the amendment the defendant alleges that he would not have purchased the motorcycle but for an oral agreement on the part of the plaintiff that the defendant should take the machine and use it to his satisfaction, and if upon trial by the defendant it should not prove to be as represented, the trade should be cancelled and the defendant could return the machine to the plaintiff, and he would cancel the notes and deed and return them to the defendant. It is alleged that the defendant would not have executed'the notes and deed
In ruling upon the plaintiff’s demurrer thereto and in the judgment dismissing the answer, the court held, as we think, correctly, that "said answer as a whole constitutes no valid defense at law.” The notes in question recited that they were given "for value received.” Omitting what is said in Dinkler v. Baer, 92 Ga. 432 (17 S. E. 953), touching this point, we refer to an apt statement 'of the parol-evidence rule, given in Bullard v. Brewer, 118 Ga. 918 (45 S. E. 711), as follows: “Where parties have reduced to writ
It is equally- plain that the defendant’s answer did not set up a good plea of rescission. As remarked by Chief Judge Hill, in Mizell v. Banks, 10 Ga. App. 363 (73 S. E. 410), “There is quite a difference between an attempt to contradict the terms of a contract by parol testimony under a defense that the contract has been breached, and an effort to have the contract rescinded because of fraud in its procurement.” Still a failure to allege sufficient facts to show the existence of fraud is alike fatal to both defenses. The elementary rule applicable to the defenses which the defendant
So far as the plaintiff’s promises after the maturity of the first note are concerned, it does not appear that there was any consideration in addition to the defendant’s promise to pay as originally made by his notes; hence the promises in regard to repairs, etc., was nudum pactum. Baldwin v. Daniel, 69 Ga. 782-791:
Judgment affirmed.