219 Ga. 476 | Ga. | 1963
On May 1, 1957, J. R. Youmans for a consideration of $91,250 sold and conveyed to Ralph L. Holland certain real and personal property in Muscogee County. Holland at that time gave Youmans his note for the purchase money and executed and delivered to him a deed to the property purchased as security therefor. On December 1, 1961, Holland conveyed to Ena A. Holland, his wife, a one-lialf undivided interest in the property purchased from Youmans by a deed which was duly recorded on December 22, 1961. On January 9, 1962, Youmans was adjudged incapable of managing his estate, and Augusta M. Youmans, his wife, was appointed guardian of his person and property and qualified as such. Holland failed to pay some of the installments due on his note to Youmans, and Augusta M. Youmans, as such guardian, elected to and declared the unpaid balance on the note due and payable and, under the terms of Holland’s security deed, advertised the property described therein for sale on the first Tuesday in February, 1962. On January 22, 1962, Ralph L. Holland and Ena Holland entered into a sales contract with Bernice G. Osborn by the terms of which they agreed to sell and convey to her all of the property which Holland had purchased from J. R. Youmans on the payment of $6,000 in cash to them and for the further consideration that she would assume and pay the balance due on Holland’s note to Youmans after the sellers applied so much of the
There was no demurrer to the amended petition. The defendants filed separate answers. The defendant Osborn denied that she had assumed payment of the note sued on or any balance due thereon and alleged that the quitclaim deed from J. R. Youmans to her transferred and assigned to her the note from Holland to him. The defendant Holland averred that he was released from any liability to- pay the note sued on or any balance due thereon when the defendant Osborn assumed payment thereof and the petitioner accepted her assumption. On the trial and after the introduction of evidence closed, the petitioner filed a motion asking the court to direct a verdict
1. Code Ann. § 110-113 provides: “Whenever a motion for a directed verdict, made at the close of all the evidence is denied, or for any reason is not granted, a party who has moved for a directed verdict, within 30 days after the reception of verdict, may move to have the verdict and any judgment entered thereon set aside and to have judgment entered in accordance with his motion for directed verdict. . .” A judgment notwithstanding the verdict can be rendered only
2. There is no evidence in this case showing or tending to show that the plaintiff released the defendant Holland from his obligation to pay the balance due on his note to Youmans; but the deed which the defendant Osborn accepted from the defendant Holland and his wife did create an obligation on his part to pay the balance due on such note. See Zellner v. Hall, 210 Ga. 504 (3) (80 SE2d 787), where it was unanimously held: “When a grantee in a sales agreement, as a part of the consideration thereof, assumes and agrees to pay an outstanding indebtedness against the property thus conveyed, evidenced by a note and deed to secure debt, he takes upon himself the burden of the debt or claim secured by the
3. Since the rulings made in the two preceding divisions effectively dispose of the controlling issues in the case, the question presented for decision by the cross bill of exceptions will not be ruled on.
Affirmed on main bill of exceptions; cross bill of exceptions dismissed.