58 Ga. App. 84 | Ga. Ct. App. | 1938
The exception here is to the direction of a verdict for Whitesburg Banking Company (hereinafter referred to as the bank), in a proceeding brought by it against O. S. Miller to foreclose a bill of sale as a mortgage. The note secured by the bill of sale was for the principal sum of $300, but there was entered on the bill of sale a payment of $200, and the affidavit of foreclosure recited that Miller was due the bank $100, besides interest and attorney’s fees. The execution was levied on “one black mare-mule weighing about 1000 pounds about 4 years old,” as the property of Miller, and Miller gave a forthcoming bond for the property. The note and bill of sale were dated September 1, 1936, under seal, and signed by O. S. Miller. The note recited that it was “for value received,” and was an unconditional promise to pay to the order of the bank $300 on or before September 2, 1936. The following sufficiently shows the nature of the bill of sale: “Witnesseth, that whereas the party of the first part [Miller] has secured from the party of the second part [the bank] advances of money and (or) supplies for the purpose of planting, cultivating, making, and harvesting a crop hereinafter described, amounting to the sum set out: In order to further secure the payment of all indebtedness due by the party of the first part, and (or) any other indebtedness . . , the party of the first part bargains and sells to the party of the second part . . the following property located and being on the farm and occupied by the party of the first part, hereinabove described, to wit: one black mare-mule weighing about 1000 pounds, about four years old. Also one calico-colored horse, weighing about 1000 pounds, and about six years old.” Miller’s affidavit of illegality substantially averred that on August
The bank introduced in evidence the note and bill of sale, and closed. Miller introduced a warranty deed from Whitesburg Banking Company to O. S. Miller, reciting a consideration of $2300, and conveying described land, “subject to an original loan of $5500 made to H. A. Jones by the Federal Land Bank of Columbia,” together with “our undivided one-half interest in all crops now growing on the above land, except that title is retained to a sufficient amount of the crop to pay for the tenant’s share of fertilizer and supplies furnished during the year 1936 on halves,” and “all wagons, rakes, mowers, plows, and all other farm tools . . now located on said farm . . ,” and “also 7 mules and one horse located on said farm. . . ” This deed was duly recorded on September 11, 1936. When O. S. Miller took the witness-stand in his own behalf, he was asked this question: “What was the agreement between you?” Counsel for the bank interposed this objection: “The deed shows the agreement.” The court said: “You are attempting to change the terms of the contract. The deed recites the consideration, a consideration of so much money for certain property. You are not going into the consideration; you are going into the property conveyed.” Counsel for Miller said: “I want to show that he had a subsequent contract with Mr. Watkins before the deed was delivered, and before he paid the money, that he was not to pay the $2300, but was to pay $2000, and Mr. Watkins reserved one of the mules and a horse.” The court said: “I don’t think under the rules of law you can show anything, unless it was subsequent to the delivery of the deed. I think you are bound by the terms of the written instrument.” Counsel for Miller then said: “I want to show that he was to give $2000 for all the property except the one mule and horse in question, and Mr. Watkins accepted that trade, and Mr. Miller paid the money, and Mr. Watkins turned over the deed. He [Watkins] said to him [Miller] : ‘This deed shows that you own that horse and mule, but under our agreement you don’t own them; so you execute a bill of sale showing that we own them,’ and he executed it under those
Miller further testified: “Well, they had held up my rentals for which I qualified, and I had a talk with Mr. Watkins. . . I had contracts on three other farms, and I couldn’t get any of my papers. The whole amount was held [up] in connection with this until the matter was settled. Before I bought the place from Mr. Watkins, I asked Mr. Watkins if this property was qualified for Government rentals, and he told me it was not. . . He said he thought it could be done. . . We were 35 acres short, and we qualified, and did get the full amount of the rental for myself and for the tenants on the place. They got the full amount by my qualifying. On November 30, after I had been in possession of the 'property, and after this contract had been completed, and after the place complied with the Government regulations, Mr. Watkins signed that 'paper, and automatically that made them become interested from the Government standpoint in some amount, and Mr. Watkins agreed in his store that they had- no equity, and he
“Although a promissory note recites a consideration, it is the right of the maker, when sued thereon by the payee, to prove by parol that there was really no consideration at all; and any facts pertinent to an issue thus arising are relevant.” Hawkins v. Collier, 101 Ga. 145 (28 S. E. 632). In Rheney v. Anderson, 22 Ga. App. 417 (96 S. E. 217), this court held: “Where a negotiable promissory note purports to have been given ‘for value received,' and suit is brought thereon by the payee, the maker may plead, and prove by parol, that the note was executed without consideration as between the parties, and for the sole purpose of enabling the payee to indorse it to a third person as collateral security for a debt which the payee desired to contract and which he promised to pay without assistance from the maker of the note. Such a note is a mere accommodation paper, and, while in the hands of the person to be accommodated, is without consideration and binds nobody.” In his able concurring opinion in the Bheney case, supra, Judge Jenkins discussed at length the parol-evidence rule and its bearing upon the defense of a total absence of consideration. In Ramsey-Fender Motor Co. v. Chapman, 46 Ga. App. 385 (168 S. E. 92), there was under consideration a proceeding to foreclose a retention-of-title contract on an automobile. The holding there made, that in a suit between the original parties it was not erroneous to permit the defendant to show that the instrument was without consideration, was adhered to on the first motion for a rehearing, and a second motion for rehearing was denied. Subsequently an application for certiorari in the case was denied by the Supreme Court. The nature of the Bamsey-Fender Motor Co. case will be understood from the following quotation from the decision rendered on the first motion for rehearing: “The affidavit of illegality filed by the defendant in the foreclosure proceedings set up that he had originally bought a Ford car from plaintiff on July 10, 1929, giving his purchase-money note therefor in the sum of $480, payable in installments of $40 each; that on May 19, 1930, when the instrument now sought to be foreclosed
In Citizens Bank of Blakely v. Hall, 48 Ga. App. 127 (172 S. E. 70), this court said: “Where a defendant in a suit on a promissory note, brought by the original payee, pleads want of consideration, and there is evidence that he received nothing as a result of executing the note, and that no consideration existed at the time of its execution (the note having been executed as an accommodation note for a few days, until it could be ascertained if the debt was really due by the defendant, and it being ascertained thereafter that the debt was not due by the defendant), such evidence, when accepted by the jury as true, is sufficient to sustain the plea
Under the foregoing authorities, the defendant had the right to plead, and prove if he could, as a valid defense to the foreclosure proceedings, that the note and bill of sale were executed without consideration and for the sole purpose of accommodating the plaintiff by putting the title to the mule and horse back in it where it belonged. And while the affidavit of illegality did not plead in so many words that the instruments were executed without “consideration,” it clearly appears from the alleged facts set forth in the affidavit that the defense to the foreclosure proceedings was based on that theory. The plea was sufficiently supported by the evidence to carry the case to a jury. It was also a question for the jury to determine whether Watkins received from the Government any “rentals” which rightly belonged to the defendant; and, if so, whether he received them as the agent of the plaintiff. It follows that the court erred in directing the verdict against the affidavit of illegality.
Judgment reversed.