188 Ga. 524 | Ga. | 1939
This petition by the grantor against the grantee of a security deed to land prayed for an accounting, cancellation of the instrument, and restoration of possession of the property. It was alleged that while the creditor, under a power of
1. An executed agreement between a grantor and a grantee in a security deed to land is not invalid as lacking in consideration from the grantor, where it is' agreed that the grantee will abandon his foreclosure sale of the land as advertised under a power in the deed, in consideration of his immediately acquiring an absolute title and immediate possession of certain live stock,-at an agreed valuation, covered by a separate bill of sale to secure debt from the grantor to the grantee, and also the grantee’s immediate possession of the land with the right and obligation on his part to apply the rents and profits of the land on the security deed and other unsecured indebtedness of the grantor, and with the grantee’s obligation to return the land to the grantor and cancel the security deed when the rentsequal all the indebtedness. See Fite v. Thweatt, 46 Ga. App. 82 (166 S. E. 682); Mortgage Purchase & Sales Co. v. Williamson, 55 Ga. App. 92 (189 S. E. 293); Dortch v. Bishop, 27 Ga. App. 720 (109 S. E. 674); Polhill v. Brown, 84 Ga. 338 (10 S. E. 921). This petition by the grantor against the grantee of a security deed alleging that all indebtedness had been paid under the operation of said agreement, and praying for cancellation of the instrument, restoration of possession- of the land, and an accounting as to the rents and the indebtedness, and setting forth the above alleged agreement, was not subject to* demurrer as alleging a mere nudum pactum.
2. The defense of the statute of frauds must be specifically raised, and can not be insisted upon in the appellate court, unless the record shows that it was raised in the trial court. Tift v. Wight, 113 Ga. 681, 686 (39 S. E. 503); Marks v. Talmadge, 8 Ga. App. 557 (69 S. E. 1131); Shierling v. Richland Grocery Co., 9 Ga. App. 271 (70 S. E. 1126); Miller v. Smith, 6 Ga. App. 447 (65 S. E. 292); Williams v. Johnson, 8 Ga. App. 651, 652 (70 S. E. 89). The record in this case shows that the defendant filed two demurrers to the petition, but the only one brought up does not disclose that any such defense was raised. But even if it had been made to- appear that such a ground was included in a second de
3. For the reasons stated, it was error to dismiss the petition on demurrer. Judgment reversed.