Sims v. Sims

162 Ga. 523 | Ga. | 1926

Gilbert, J.

The controlling question in this case is whether the court erred in overruling the third ground of the demurrer to the petition, which is as follows: “Defendant demurs generally to said petition, for the reason that the same is an attempt to vary the terms of a written instrument by parol.” The Civil Code (1910), § 3258, declares: “A deed or bill of sale, absolute on its face and accompanied with possession of the property, shall not be proved (at the instance of the parties) by parol evidence to be a mortgage only, unless fraud in its procurement is the issue to be tried.” On the other hand, it has been decided in numerous cases, “A deed absolute in form may be- shown to have been made to secure a debt, where the maker remains in possession of the land conveyed.” It is only necessary to cite a few of these cases, as follows: Mercer v. Morgan, 136 Ga. 632 (71 S. E. 1075); Berry v. Williams, 141 Ga. 642 (81 S. E. 881); McNair v. Brown, 147 Ga. 161 (93 S. E. 289); Waller v. Dunn, 151 Ga. 181 (106 S. E. 93); Hand v. Matthews, 153 Ga. 75 (111 S. E. 408). The law being well settled, therefore, that parol evidence in such a ease will not be admitted where the grantor surrenders possession to the grantee, but that such evidence will be admitted where grantor does not surrender but retains possession, the decision of this case depends on the particular construction of the allegations of the petition in regard to possession,’and whether or not Brooke had notice of all stages of the transaction previous to his entry into the matter. The allegations of the petition and of the amendment are set out in full in the statement of facts preceding the opinion. Under the proper construction of these allegations, the petition alleges that the grantor remained in possession of her property. All cases cited by the plaintiff in error differ from this case in that particular.

The remaining headnotes do not require elaboration.

Judgment affirmed.

All the Justices concur.