29 S.E.2d 503 | Ga. | 1944
1. "It is an elementary rule of construction, as applied to a pleading, that it is to be construed most strongly against the pleader; and that if an inference unfavorable to the right of a party claiming a right under such a pleading may be fairly drawn from the facts stated therein, such inference will prevail in determining the rights of the parties." Krueger
v. MacDougald,
2. While the petition in the instant case refers to a loan, it alleges no promise on the part of the plaintiff to pay any sum, and when construed most strongly against the pleader, under the foregoing rule, it shows merely a sale of the property with an oral option to repurchase, the latter being in conflict with the deed and therefore unenforceable, and does not show a security deed with possession held by the grantor. The court did not err in sustaining the general demurrer and dismissing the petition.
Judgment affirmed. All the Justices concur.
By amendment, petitioner alleged that she never at any time told Pangle she would not be able to raise the money and redeem the property; that she never authorized anyone to do so for her; that she never at any time authorized him to sell the property; that "the only way she has to raise the money necessary to pay said indebtedness to defendant Pangle is by borrowing the same and securing such borrowed money by deed to secure debt on her aforesaid property; but that she was then prepared on October 9, 1943, and is still in position to procure said money and pay said indebtedness by giving a loan deed with first lien to her aforesaid property. For the reason stated she has not tendered said money into court. The conduct of defendants in violating the terms of her true contract with defendant Pangle has made it impossible for her to tender said money into court." She alleged bad faith on the part of Pangle, and that he fraudulently procured from her an absolute fee-simple conveyance of title, containing no recitals of conditions or defeasance, after he had falsely and fraudulently represented himself as her friend, who was trying to help her save her property, and whose proposal she accepted in good faith; but that he immediately violated his proposal. She offered to confess judgment against herself and against the property for the sum of $1327.15 with interest, in favor of Pangle, and asked that this be accepted in lieu of a continuing tender in view of all the circumstances alleged, and the fact that tender was made and refused on *417 October 9, 1943. She alleged that it would be necessary to encumber the property for the purpose of raising the money; and that it would take several days to consummate a loan, and asked a few days time thereon before denying her the right of redemption.
The prayers were: For process; that the true contract between petitioner and Pangle be set up and established by decree of the court; that petitioner's deed to Pangle be reformed so as to embody all the terms of the true contract; that Pangle be required to reconvey the property to petitioner upon the payment to him of the sum of $1327.15, with interest; that the deed from Pangle to Mrs. Carroll, and the latter's reconveyance to Pangle to secure debt be annulled as clouds on petitioner's title and right of possession; that both defendants be enjoined from changing the status of the title in any manner, and enjoined from interfering with petitioner's ownership and right of possession; and for such other and further relief as to the court might seem proper.
The defendant demurred generally to the petition as amended, and the plaintiff excepted to the judgment sustaining the demurrer.