161 Ga. 360 | Ga. | 1925
The security deed contains a clause accelerating the payment of the principal before its maturity, by failure of the vendor to pay any installment of interest. This instrument likewise contains a power of sale, authorizing the holder, in default of payment of any installment of interest, to declare the principal debt due, and to advertise and sell the land embraced therein to enforce payment of the principal and interest of the debt. An installment of interest, by the terms of this deed, became due on July 27, 1923. On April 3, 1923, the debtor paid this installment of interest to the company which negotiated the loan. This company was the authorized agent of the lender to collect the interest as it became due. The agent did not, it seems, acquaint the principal with the fact of the premature payment of this installment of interest, and did not account to her therefor. The principal did not have knowledge otherwise of its payment. After the date of the maturity of this interest installment, the agent turned the papers over to its attorney for collection. The property was duly advertised for sale under the power of sale, and was sold. It was bought in by the divorced wife of the vendor. He filed his petition to set aside the sale, because it was void, as he had paid this interest before it was due. There was evidence authorizing a finding that the vendor had personal notice of the advertisement of the sale of the property prior to the sale. There was likewise evidence authorizing the jury to find that the purchaser did not have notice or knowledge of the fact that the installment of interest, for the alleged default in the payment of which the lender advertised and sold this property, had been paid, although there was evidence authorizing a contrary finding.
On January 4, 1923, Ida Ellis, the plaintiff in error, filed her suit for divorce and alimony against her husband, Foster Ellis, who is the defendant in error. On January 13, 1923, she obtained a judgment for temporary alimony and her attorney’s fee. On January 27, 1923, the husband borrowed from Miss McCrary the sum of $300, and to secure the same executed the security deed dealt with in the first division of this opinion. On February 26, 1923, this suit for divorce and alimony came on for final trial, and the wife was granted a total divorce and alimony. On April 1, 1923, the husband left the State without paying these judgments awarding his wife temporary and permanent alimony. In January, 1924, he returned to the State. On April 15, 1924, he made application to reduce the judgments for alimony, alleging that at the times of the original hearings he owned certain real estate and personal property, but since the rendition of the judgments he had been ill with rheumatism, was physically unable to work, and
At this stage of the proceeding the judge suggested to the parties that they settle tlieir controversy over the alimony, and suggested the payment and acceptance of $150 in full of the wife’s judgments for alimony. Thereupon counsel for the husband offered to the wife in open court $150 in full settlement of all demands for alimony, stating that his client owned no property of any kind, and that if she did not accept that sum she would not get anything. The wife and her attorney took the offer under advisement. After considering the matter the wife stated to her attorney that, if she could not get anything more, she would accept the sum offered in full of her judgments for alimony, which at the time amounted to $433.30. Thereupon the parties entered into a contract in writing, whereby the wife accepted said sum in full settlement of the judgments which she held against her husband for alimony and which were valid liens upon all his property. In the negotiations leading up to this settlement the husband did not disclose to the wife that he thought the sale to her was void because of the fact that this interest had been paid, or that it was his purpose to bring proceedings to set aside this sale and to cancel her deed. There is evidence authorizing a finding that his secret purpose was to get the alimony judgments settled, and then proceed to have this sale set aside and her deed canceled. In view of these facts the wife insists that her husband is estopped from pressing the present proceedings to have her deed to this land canceled, and to recover the same from her. She insists that the present proceeding is inconsistent with his position taken in the application for the reduction of alimony, and that on the hearing of her proceeding for attachment for contempt for failure to pay the same, at which time he insisted that he owned no real estate and recognized her title to this land, by reason of which contention he in
A claim made or position taken in a former action or judicial proceeding will generally estop the party to make an inconsistent claim or to take a conflicting position in a subsequent action or judicial proceeding to the prejudice of the adverse party. Crusselle v. Reinhardt, 68 Ga. 619; Davis v. Wakelee, 156 U. S. 689 (15 Sup. Ct. 555, 39 L. ed. 578); Luther v. Clay, 100 Ga. 236 (28 S. E. 46, 39 L. R. A. 95); Ray v. Home &c. Co., 106 Ga. 492 (6) (32 S. E. 603); Vaughn v. Strickland, 108 Ga. 661 (34 S. E. 192); Neal Loan &c. Co. v. Chastain, 121 Ga. 500 (49 S. E. 618); Harris v. Harris, 154 Ga. 271 (114 S. E. 333). Having set up the sale of this land under the power of sale, and the purchase and possession thereof by his divorced wife, to enable him to procure a reduction of alimony and to escape attachment for contempt in failing to pay her alimony, and having in consequence procured a settlement of her alimony judgments for a sum much less than the amounts due thereon, he is now estopped from bringing an action to set aside a sale of this land under the power of sale in the security deed, and to cancel her title thereto on the ground that the sale was void. He can not blow both hot and cold.
In the circumstances the divorced wife contends that, if it should be adjudged that this sale was void, and that she got no title to this land, she would be entitled to have set aside and canceled the contract by which she settled her alimony judgments for much less than the amounts due thereon, and to have these judgments declared liens upon the property of her divorced husband. In other words, she seeks, in such event, a rescission of this contract for fraud. A contract may be rescinded for fraud. Civil Code (1910), § 4305. As the ex-wife received under this contract a much less amount of alimony than she was entitled to under her judgments, it was not necessary to restore or offer to restore the amount of alimony which she received under the contract. Farnell v. Brady, 159 Ga. 209 (125 S. E. 57). It was a fraud on the part of the ex-husband "against his ex-wife to treat this sale and her title to this land as valid for the purpose of securing a settlement of her alimony judgments, and of getting the. liens of these judgments upon this land canceled, when it was his secret, undisclosed intention, as soon as this was accomplished, to take
Judgment reversed.