Hickman v. Cornwell

145 Ga. 368 | Ga. | 1916

Hill, J.

(After stating the foregoing facts.) H. W. Hickman bought certain property from the assistant cashier of the Jasper County Bank, and Mrs. Mary A. Hickman, his wife, gave the bank a note and mortgage for the debt. The deed attacked was given by the plaintiffs, Mrs. Mary Hickman and her daughter, Mrs. Atwood, to Cornwell, the assistant cashier of the bank, to pay off the bank. The petition does not say so in terms, but in effect that the purchase-money paid by Cornwell to Mrs. Hickman and her daughter was to be applied to the debt due the bank. That can have no application at all to the daughter. There is no law against a daughter paying her father’s debts. Therefore the allegation and demurrer as to paying the debt of the husband by the wife and daughter would apply only in so far as the wife was concerned, to her interest in the land. The mere fact that she may have sold the land to Cornwell and may have used the money to pay her husband’s debt would give her no right of recovery, although Corn-well may have known that this was the use intended, unless there was a scheme to get her to pay her husband’s debt and Cornwell was a party to that scheme. If'there was, then to the extent of her interest there are sufficient allegations to bring the ease within the rulings in the cases of Kent v. Plumb, 57 Ga. 207, and Bond v. Sullivan, 133 Ga. 160 (65 S. E. 376, 134 Am. St. R. 199).

It is alleged that Benton threatened to prosecute the husband and to sell all he had if he did not pay the debt by a time named; but that was a threat to the husband and father, and there was no allegation that Benton or any one else made any threats directly to the wife and daughter. Indeed, there is no allegation that the father communicated the threats alleged to have been made to the wife or daughter, or that the father used them in order to get the deed. The allegations do not make out a case of duress as to these plaintiffs. There is a very serious question as to whether the allegation that he would prosecute the husband alone makes a case of duress, even if made to the plaintiffs; because it is not alleged that he had committed any crime, or what it was. A general threat to prosecute is alleged, without more. Whether this is a sufficient threat to constitute duress is questionable. But waiving that, and treating it as -sufficient for the purpose of this argument, there is no duress on these plaintiffs.

Another allegation is one of fraud, in that Doyle Campbell wrote a letter to the daughter, representing himself to be the attorney of her father, and asking that she sign the deed with her mother, when in fact he was not her father’s attorney, but was the attorney of Cornwell, Benton, and the Jasper County Bank. There is no allegation that the father did not in fact desire her to sign the paper, or did not request her to do so. Nor is there any allegation that he did not .authorize Campbell to make the request. If he had requested it, or authorized Campbell to request it, the mere statement that Campbell was his attorney would not alone suffice to set aside the transaction, if it would be a sufficient fraud to accomplish that result even if the father did not request it.

There were allegations that “by reason of the frauds, threats, and duress practiced upon H. W. Hickman and themselves, that they executed and delivered to G-. W. Cornwell, the defendant herein named,” the deed sought to be canceled. In another place it is alleged that Cornwell employed another attorney, A. Y. Clement, who threatened the husband and father with criminal prosecution unless the deed should be signed by his wife and daughter. It was then alleged generally that “defendant, knowing of the threats, fraud, and duress, fraudulently schemed and connived by subtle arguments and acts in consonance with other people, and by other fraudulent means caused petitioners to make and deliver said deed described in paragraph nine of this petition.” This general allegation that defendant “connived by subtle arguments and acts in consonance with other people/’ and that “by other fraudulent means” he caused the petitioners to make the deed, is entirely too general to amount to an allegation either of duress or fraud upon the petitioners. Allegations of “subtle arguments” and of “acts in consonance with other people” do not indicate specific acts of fraud, and the allegation that the plaintiffs were induced to make the deed “by other fraudulent means” is entirely too general to withstand a demurrer. Fraud must be alleged in something more than adjectives. Anderson v. Goodwin, 125 Ga. 663 (54 S. E. 679).

The next ground asserted for setting aside the deed is that the plaintiffs sold the property at a price below its value. The price at which the defendant bought it was $1150. The allegation in regard to its value is: “Petitioners show that the actual market value of said property described in paragraph nine of this petition to be $3,000.” Whether they showed it to be $3,000 at the time when it was sold, or about six years later, when they brought the suit or made the allegation, is not clear; but if it referred to the former time, the mere fact of selling property of the value of $3,000 for $1150 is not alone sufficient to authorize a decree that the deed be canceled. Civil Code, § 4244.

Upon the whole, no case is made out by the petition, except to the extent that the wife alleges that she sold and conveyed her interest in the property to Cornwell for the purpose of paying a debt due by her husband to the bank; that Cornwell was the assistant cashier of the bank; and that he and the cashier of the bank colluded to obtain the conveyance from her, so that in effect he participated in collecting for the bank its indebtedness by obtaining a conveyance from her and paying the debt to the bank, which was less than the value of the property. Accordingly, the judgment of the court below is reversed, with direction that, to the extent of the allegations with respect to the last-mentioned matter, the case be reinstated as to the wife; but in other respects the judgment is affirmed.

Judgment reversed, with direction.

All the Justices concur.