Hyde v. Bozeman

146 Ga. 148 | Ga. | 1916

Atkinson, J.

Suit was brought to recover a balance due on a promissory-note alleged to have been given in part payment for described land, and to declare a special lien on the land. The defendant filed a plea admitting execution of the note, and alleging the following: The price of the land was partly paid in cash; the other part was represented by two notes, one of which had been paid, and the other was the note in suit. At the time of the purchase the plaintiff conveyed the land to the defendant by warranty deed. Subsequently the plaintiff claimed to have discovered that her minor sons had interests in the land, which she could not convey, and entered into an agreement to accept from the defendant notes for stated amounts, payable to the minors respectively, to mature at the dates on which the payees would attain majority (one in 1917 and the other in 1920), and to credit the amount of these notes on the note in suit. The notes to the minors were duly executed and delivered to plaintiff, and are outstanding. After executing these notes the defendant paid a stated amount, which, by allowing' credit as just indicated, was sufficient to discharge the note in suit. At the trial the judge directed a verdict for the plaintiff, upon which ruling error was assigned by the defendant. In a cross-bill of exceptions the plaintiff assigned error on a judgment overruling a general demurrer to the special plea. The main bill of exceptions recited that the defendant assumed the burden of proof, and that the only issue was as to whether he should be allowed credit for the notes to the minor sons of the plaintiff. Seld:

November 17, 1916. Rehearing denied December 14, 1916.

Complaint. Before Judge Patterson. Pickens superior court. September 28, 1915.

Roscoe Piclcett and Herbert Clay, for Hyde. Holbrook & Corbett and Richard B. Russell, contra.

1. There was no error in overruling the demurrer to the plea.

2. The evidence would have authorized a finding that the notes to the plaintiff’s minor sons had been executed by the defendant and delivered to the plaintiff in circumstances alleged in the plea. Accordingly, it was erroneous to direct a verdict for the plaintiff on the basis that the defendant was not entitled to have them credited on the note in suit.

Judgment reversed on the main hill of exceptions, and, affirmed on the cross-hill.

All the Justices concur.