158 Ga. 499 | Ga. | 1924
On the 14th day of August, 1919, Mrs. H. B. Stone, being the owner and in possession of 108 acres of land in Appling County, Georgia, contracted to sell the same to G. G. Horton for the consideration of $8,000. There was at that time an encumbrance upon the land in the form of a security deed executed by Mrs. Stone to Charles Forman. Horton paid Mrs.
At the hearing of an equitable petition, to which the defendant made an answer, the plaintiff offered an amendment, which was allowed; and the defendant, claiming that he was surprised thereby, moved for a continuance that he might procure evidence to meet the allegations of the amendment. The motion to continue was overrated. The grant .or refusal of a continuance rests in the discretion of the court; and a judgment refusing a continuance will not be disturbed unless an abuse of discretion is shown, and it is not shown by the plaintiff in error. No statement was made to the court'as to the time for which the continuance was desired, or within which it was probable that the evidence desired could be obtained. The motion did not show the nature or character of the evidence, nor did the movant state that he expected to procure evidence which would meet the allegations .which he desired to controvert; nor is the name of any witness stated whose evidence he desired to secure.
Moreover, we are of the opinion that although in the deed from Mrs. Stone to Horton, or in the security deed from the latter to his vendor, which was the only written evidence of the renewed contract between Mrs. 'Stone and Horton for the sale of the land, no reference was made to the security deed to Forman, it was competent by parol evidence to show that it was the understanding and agreement between vendor and purchaser that the latter should pay off the existing encumbrance upon the land. This evidence related to the consideration of the deed, and was in expla: nation of the real consideration of that instrument. True the deed refers to a fixed sum as the consideration for the conveyance, but it was competent for the parties to show that there was an additional consideration, to wit, that the purchaser assumed the payment of the debt which was an encumbrance upon the land at the time of the purchase; and it was competent for the defendant in the equitable petition to show the true consideration of the deed by the parol evidence which was objected to. In the case of Thrower v. Baker, 144 Ga. 372 (87 S. E. 301), it was said: “The parol-evidence rule excludes any variation or contradiction of the terms of a valid written instrument. There is, however, another
The court was authorized to find that the security deed was not infected with usury.
Judgment affkmed.