Monroe v. Security Mutual Life Insurance

127 Ga. 549 | Ga. | 1907

Evans, J.

The nature and scope of the grounds of the affidavit ■of illegality are so fully embraced in the headnotbs that a more ■elaborate statement of the facts is unnecessary. The defendant ■does not attack the validity of the judgment; the object of this-illegality is not to be delivered from an unjust'judgment by setting it aside, but to resist the execution on account of the alleged injustice of the plaintiff who seeks to enforce it. A defendant may resist an execution by successfully showing that he had a good defense to the suit, which he was induced to abandon because of an agreement with the plaintiff that 'the judgment to be rendered was to be discharged against him upon his doing certain acts subsequent to the judgment, and that he had performed such acts conformably with his agreement. "An affidavit of illegality, under our system, if the facts are set forth, may bring up any good reason why it will be illegal to raise the money.” Shorter v. Moore, 41 Ga. 691, 695. The withdrawal of his defense is sufficient consideration to support the contract that the judgment is not to be enforced against him upon his compliance with the terms of the agreement. The agreement does not contemplate any attack on the judgment, but is a contract to discharge it by performing certain acts subsequent to the judgment. It would be inequitable and wrong to permit a plaintiff to induce a, defendant to withdraw- a valid defense upon the plaintiff’s consent that the judgment might be subsequently discharged in a particular way, and then, upon the defendant’s doing or offering to do the acts agreed on to discharge the judgment, to repudiate the agreement. Such a defense is available by affidavit of illegality. Wimberly v. Adams, 51 Ga. 424. But the defect in the affidavit of illegality under consideration is that affiant fails to allege compliance on his part, either in the original affidavit or in the amendment which was rejected by the court. Even if the court had allowed the amendment indicated in the last headnote, as there pointed out the affidavit would have been still defective. Accordingly there was no error in dismissing the affidavit on demurrer.

Judgment affirmed.

All the Justices concur, except Fish, G. J., absent. ■