164 Ga. 445 | Ga. | 1927
J. L. Lanier filed an equitable petition against J. W. Nichols and Mrs. Jessie Nichols, and alleged that J. W. Nichols was indebted to him on a certain promissory note in the sum of $1450, dated December 18, 1924, and containing an assignment of Nichols’ homestead and exemption rights, a power of attorney to said Lanier to claim exemption rights for Nichols, etc.; that Nichols went into bankruptcy, and on February 7, 1925, the referee in bankruptcy set aside to him as- an exemption certain property;
In addition to what is set out in the foregoing statement, J. W. Nichols specifically averred that '“the said attorney (who was not the present attorney, J. C. Pratt, attorney for the movant), then and there acting as attorney for plaintiff, and this defendant, met in the office of the said attorney for the purpose of drawing another bill of sale, to secure the debt of this defendant, and also a note for said amount. It was distinctly understood and agreed between plaintiff and this defendant that the said debt, which was to be evidenced by a plain promissory note, of the kind that was generally used in Winder at that time, viz., a note containing a simple promise to pay the amount of the debt, waiving homestead and exemption rights and containing a stipulation for attorney’s fees, but containing no mortgage, assignment, bill of sale, or other conditions.' The bill of sale was prepared, and contained none of the articles lately set aside to this defendant as a homestead, and described in the plaintiff’s petition, but only all the physical assets of the business known as the Winder Marble & Granite Works, which were the only articles which were, under an express' oral agreement and understanding, to be conveyed to secure the said
Under these averments we are of the opinion that the court erred in striking the answer of the defendants. In Wood v. Cincinnati Safe & Lock Co., 96 Ca. 120 (22 S. E. 909), this court held: “Where a party has been induced to enter into and sign a written contract by false and fraudulent representations as to its contents, made by the opposite party, which were intended to deceive and did deceive the party signing it, the latter may set up this fraud as a defense to an action against him upon the contract.
Judgment reversed.