Lewis v. Equitable Mortgage Co.

94 Ga. 572 | Ga. | 1894

The Equitable Mortgage Co. made a loan, through the Atlanta Trust & Banking Co., to B. W. and W. M. Coruelison and D. P. Cline, taking, as security for the loan, a deed to 990 acres of land in Gordon county, under the code, §1969 et seq. The note so secured having become due, under the terms of the contract, by default in the payment of interest, suit was brought against the borrowers, and was subsequently amended by making J. T. Lewis and his wife parties defendant. It was alleged, that said land was conveyed to the borrowers by Lewis shortly before the loan was made ; that they represented on oath to plaintiff' that they had bought it for $15,000 from Lewis, $8,000 cash and $7,000 when the loan was closed, which was false, the only consideration paid by them, to Lewis, except a small piece of land worth less than- $1,000, being the money procured of plaintiff'; that they conspired with Lewis to defraud plaintiff' by said false representations, so as to procure a loan of $8,062.50 on the land; that Lewis owned the land and applied to plaintiff' for a loan on it, but being afraid it would not bear the loan he wanted, he resorted, in collusion with Cornelison et al., to the artifice of a pretended sale to them on the terms named in said false representation to plaintiff'; that the land conveyed by the security deed was not worth over $8,000 or $4,000, and defendants were insolvent and irresponsible; and that Lewis, having obtained the money loaned by plaintiff', invested it in land in Bartow county, withholding his deed from record, and returning this land for taxation in the name of his wife. Plaintiff' prayed that this land be sold to make up the deficiency remaining after the sale of the Gordon county land covered by the security deed.

Lewis and wife answered severally, denying the main allegations of the petition, and all fraud and collusion; and setting up, in substance, that the equitable title to the Gordon county land, while held by them, was in her as it was paid for with money of her separate estate; that it was most valuable, and well worth double the amount of the loan obtained upon it; that Mundy and Reed, agents sen.t by plaintiff, thoroughly examined said land, made their own valuation thereof, and recommended the loan; that the actual amount of money received by Cornelison et al. on the loan was only about $6,615, which they paid to Lewis for his wife, and which he reinvested in the Bartow county land on a contract of purchase for $10,000, takiug a bond for title and afterward transferring it to his wife on her demand ; etc.

The jury found for the plaintiff, with a special lien on the Bartow county land. Lewis and wife moved for a new trial, which was denied. The motion alleges that the verdict was contrary to law and evidence. Also, that the court erred in assuming, in the charge to the jury, that the facts alleged in the petition would entitle plaintiff to the relief sought, and that the fraud alleged had been proved. Also, in ruling out testimony of the father of Lewis, that a place swapped to the former by the latter for part of the Gordon county land was Mrs. Lewis’s place, and testimony of Lewis that he “ notified the inspector” that he was his wife’s agent (defendants insisting that this inspector was plaintiff’s agent, and that the testimony was relevant to show notice to plaintiff of the wife’s equity). Also, in ruling out testimony that Fullerton and Mundy, agents of the Atlanta Trust & Banking Co., valued the Gordon county land at $22,-000 when they went over and inspected it. Also, that the court erred by instructing the jury that there was no evidence charging plaintiff with notice of any equity of Mrs. Lewis in the land; and in charging as shown by the sixth head-note.

The verdict was rendered and the motion for new trial made at the August term, 1892, and the court passed an ■order allowing defendants 30 days in which to file a brief of the evidence. "Within the 30 days, but after the adjournment of the August term, defendants filed, under the approval of the court, the stenographer’s report of the testimony, including questions and answers, remarks, objections, rulings, and arguments of counsel, without abridgment or condensation, and without any portion of the documentary evidence or of the interrogatories read on the trial. WRen the motion came on to be heard at the February term, 1893, plaintiff moved to ■dismiss it for failure to file a legal brief of evidence within the time allowed. The motion was overruled; .■and defendants were allowed to file a document as a brief of evidence, in lieu of the original stenographer’s report, over plaintiff’s objection that the time had expired within which a brief of evidence could be filed. Plaintiff' renewed the motion to dismiss, on the ground "that the paper thus offered and filed was not a condensed and succinct brief of the material portions of the oral ■evidence. The motion was overruled, and plaintiff excepted by cross-bill.

W. H. Dabney, J. C. Pain, W. R. Rankin, E.J. Kiker and O. N. Starr, for Lewis et al. Hall & Hammond and W. J. Cantrell & Son, contra.