Neal v. Harber

35 Ga. App. 628 | Ga. Ct. App. | 1926

Jenkins, P. J.

Neal was indebted to the estate of G-. W. D. Harber in the sum of $1,000, evidenced by a certain promissory note secured by a deed to a tract of land described as follows : “All that tract or parcel of land lying and being in Franklin County, Ga., Ashland District G. M., and bounded as follows: Beginning at a stone S. 14 W. 8.94 to P. 0. near Boyston Boad, thence S. 23-1/2 E. 12.10 to Hickory, thence S. 12-3/4 E. 12.00 to Pine, thence S. 16.00 W. 19.00 to stonepile, thence N. 47-1/4 W. 22.50 to stone, thence N. 51-1/4 W. 7.13 to stone, originally white oak, thence N. 15.00 E. 24.10 to stone agreed on, pne fpot East of Hickory, thence N. 23-1/2 E. 15.00 to Hickory, thence S. 71-1/4 E. 9.00 to beginning stone corner; containing ninety three and 3/4 acres, more or less.” Neal also owed said Harber estate an additional sum of $10,000, which was secured by deed to other lands, and as additional security for which the bond for title executed by Harber to Neal, conditioned to reconvey the tract above described upon payment of said debt of $1,000 secured thereby, had been transferred to the estate of said Harber. The Atlas Insurance Company owed Neal approximately $5,000 on a claim for loss sustained by him on account of the burning of certain property insured. Neal executed to the executors of the Harber estate an order on the insurance company for the payment of $2500 of the amount due him by the insurance company, to be applied on the debts he owed the Harber.estate. This order was never accepted by the insurance company, but a draft in the amount due to Neal was delivered to one of the executors of the Harber estate, who carried it to the residence of Neal to procure his indorsement thereon. Neal had been wounded by a gunshot, and was very seriously sick at the time the executor visited him, and died within thirty minutes after he left. The executor of Harber told Neal what he desired, but Neal was too weak to indorse the draft himself and directed his wife to indorse his name thereon, which she did in his presence. The executor then inquired of Neal whether he could not pay more than the $2500 theretofore agreed to be paid from the proceeds of the insurance claim; and Neal replied that he could not do so, for the reaspn that he would need some money on account of his sickness. The executor then inquired of Neal how he desired the payment of $2500 appropriated, whether to the note for $10,000, or whether he desired the note for $1,000 retired and the balance of the payment applied to the other note. Neal made no reply, but his wife told the executor that “we wanted it applied on the home place and get it free from debt.” The note for $1,000 was secured by deed to the tract of land above described, known as the “home place.” The executors of the Harber estate applied all of the payment of $2500 as a credit on the $10,000 note, and, after the death of Neal, brought suit against his administratrix upon the $1,000 note, praying for a special lien upon the land described for the amount of the judgment sought. The administratrix filed a defense in which she set up that the note sued on had been paid,’ by reason of the fact that her intestate had directed the appropriation of the proceeds of the draft above described, so far as necessary, to the extinguishment of the note sued on, but that instead of complying with such direction the executors had applied all of the payment as a credit on the note for $10,000. She further set up, by way of amendment, that the description in the deed executed by Neal to secure the note sued on was too vague, indefinite, and uncertain to render the subject-matter of the deed capable of identification, and that therefore the deed was void and the plaintiffs were not entitled to the special lien asked for thereon, but that defendant, as administratrix of her husband’s estate, was entitled to administer the same for the benefit of the creditors, and to apply the proceeds according to the priorities established by law. On written motion by plaintiffs the trial judge struck the amendment. To this ruling the defendant filed exceptions pendente lite, and now assigns error thereon. The case proceeded to trial; and the jury returned a verdict in favor of the plaintiffs in the full amount of the $1,-000 note sued on, with interest, and further found for the plaintiffs a special lien on the property described for the amount of the verdict. Motion for a new trial was filed by defendant. It was overruled, and she excepted.

Judgment affirmed.

Stephens and Bell, JJ., concur.