161 Ga. 898 | Ga. | 1926
Harry L. Winter Incorporated filed a petition in two counts against the Peoples Bank of Calhoun and against Mrs. C. M. Alexander as administratrix of the estate of C. M. Alexander, deceased, alleging as follows: In 1920 C. M. Alexander made an application for a loan to the Georgia Loan & Trust Company, which resulted in that company lending $3500 to the applicant, who executed to secure the same a deed to certain described premises. The loan was not paid, and in consequence the petitioner obtained a judgment in the superior court of Gordon county for the principal sum, with ■ interest, attorney’s fees, and costs; execution from which judgment had been levied upon the land, when the petitioner learned for the first time that the Peoples Bank had obtained a prior judgment against C. M. Alexander for $4553 principal, interest, and attorney’s fees, which the bank claimed was superior to petitioner’s deed to secure its debt. The land is not worth the amount of the two judgments; the estate of C. M. Alexander is insolvent; and if the Peoples Bank should be allowed priority on its judgment, the petitioner will be unable to collect its judgment or any considerable portion of the same. Its loan to Alexander was made-under the following circumstances: Alexander had applied, through his attorney and agent, to the Georgia Loan & Trust Company for a loan of $5000. The company declined to lend Alexander more than $3500. On March 16, 1921, pending Alexander’s application for this loan he executed to the Peoples Bank a deed as security for $7418.38, which covered the same tract of land as that offered by Alexander to the Georgia Loan & Trust Company as security for the loan sought by him. But this fact was unknown to the Georgia Loan & Trust Company, except by the constructive notice imported as matter of law by the record of the deed. At the time the loan was made the existence of this deed was in fact unknown to the Georgia Loan & Trust Company. When the said trust company declined to loan $5000 and would only lend $3500, A. L. Henson, the attorney and agent of C. M. Alexander, “called a conference between the said C. M. Alexander, the applicant for said loan, and B. W. Blackmon, the cashier of said Peoples Bank, in the office of the said Henson, af
In the second count of the petition it is alleged, that, relying upon the agreement of Blackmon, the cashier, in behalf of the bank, Henson, representing Alexander, accepted plaintiff’s offer of $3500, and on January 21, 1922, Alexander executed and delivered his deed to secure the $3500, besides interest and attorney’s fees; that neither Alexander nor his agent gave any notice to the petitioner of the existence of the prior deed made by Alexander to the Peoples Bank, because they relied upon the assurance of Blackmon, cashier, that the same would be made secondary to the deed to secure debt given by Alexander to the petitioner when the proceeds of the loan were paid over to the bank; that the attorney at law employed by Alexander to abstract the title of the land, being advised by Alexander and his agent, Henson, of the agreement with the cashier, Blackmon, reported to pétitioner’s agent, the Georgia Loan & Trust Company, that there was no lien or incumbrance on the land; that the Georgia Loan & Trust Company, as agent for the petitioner, then issued a check for the net proceeds of the loan, which check was indorsed by Alexander and turned over by him to the Peoples Bank pursuant to the agreement, and the bank received the entire proceeds of the loan; that on account of an oversight of T. H. Lang, an attorney, “who was handling said title,” the agreement of the bank “to-make its deed to secure debt second and inferior to the deed to secure debt in favor of. petitioner was not, reduced to writing, all parties having notice of said agreement, having full confidence in said bank, and believing that it would live up to said agreement, whether put in writing or not.” The petitioner prayed: (a) that the deed executed by Alexander to the Peoples Bank be decreed to be second and inferior to the deed to se
We think the court correctly overruled the demurrers. For the purpose of demurrer the allegations of the petition must be taken as true; and thus treating them, we are of the opinion that the plaintiff had a case that was not subject to either the general or the special demurrers. The special demurrer based upon misjoinder of parties defendant, and alleging that it does not appear how or why the administratrix of Alexander and the Peoples bank should be joined, is without merit, because the subject-matter of the litigation was the same piece of property which both creditors insisted was subject to their liens, and the administratrix of Alexander was a like debtor to both, and might have a residuary or contingent interest even if both debts were paid, with the right to contest indebtedness to both or either of them. The second special demurrer alleges that the petition “fails to allege any contractual relation with the defendant bank, or that said bank had any notice of any contract with C. M. Alexander of which said bank had notice. It fails to allege that either of defendants did anything whatever to deceive, defraud, or wrong plaintiff. There is no allegation of any misrepresentation, deception, or fraud on plaintiff or its agents.” The merit of this demurrer must depend upon whether the cashier of the bank was authorized to make the agreement alleged in the petition, or, in other words, whether the cashier of a bank, as such, has the right to make such an agreement as that alleged in this petition. If so, the bank is bound by it with all the consequences that at
The defendants demurred next upon the ground that the plaintiff was not a proper party, it appearing that the suit was an effort to set up a contract between Alexander and the bank, to which contract the plaintiff was not a party. According to the allegations of the petition the contract must be construed as a tripartite agreement. Alexander and the bank, through its cashier, were certainly present, and we may admit for the sake of argument that they made the agreement, but certainly it was made for the benefit of the proposing lender; and it is well settled that under such circumstances one for whose benefit an agreement is made, if he parts with anything of value thereunder, is entitled to enforce the agreement. Under the circumstances as pleaded
The ninth paragraph of the demurrer is but a repetition of the sixth, with which we have already dealt. Even if the plaintiff was negligent in not having more fully investigated the record, the statement that by means of the conduct and promise of the bank’s cashier, which induced the attorney making the abstract to report that there were no liens or incumbrances of record, when in fact the deed of the Peoples Bank was of record, affords a sufficient reason why the -plaintiff did not exercise usual diligence under the facts of this case. Paragraph ten is without merit, as we have already held in ruling upon a previous demurrer, because it appears from the petition that the defendant bank, through its cashier, knew all the details of the proposed loan by the Georgia Loan & Trust Company to Alexander; and in the view we take of the matter, and for the reasons already stated, the bank should be bound by its agreement, regardless of the omission to repeat in the sixth paragraph of the petition what is already several times alleged in other paragraphs. In paragraph eleven of the demurrer paragraph seven of the petition is attacked, because, as insisted, the alleged agreement resting in parol sought to vary the terms of a written and duly recorded instrument. In our opinion this demurrer is without merit, because there is no attempt on the part of' the plaintiff to deny that the terms of the bank’s deed are identically as purported to be. There is no effort to vary the terms of that instrument. The petition alleges an agreement on the part of the bank, not to change the deed it already had, but a later agreement which would have done away with it altogether. Such undertakings have been frequently sanctioned by this court, as well as uniformly by courts of other jurisdictions. The remaining demurrers only present in different form the same questions as are raised in demurrers already dealt with.
The two general demurrers, the one that no cause of action is set forth, and the other that there is no equity in the petition, will be treated together. It will be noted that according to the
Judgment affirmed.