Glover v. Green

• Decision Date: 15 April 1895
• Citation: 96 Ga. 126,22 S.E. 664
• Parties: GLOVER. v. GREEN et al.
• Court: Georgia Supreme Court

22 S.E. 664

96 Ga. 126

GLOVER.

v.GREEN et al.

Supreme Court of Georgia.

April 15, 1895.

Alteration of Note—Rights of Maker—Rescission of Contract—Retention of Benefits.

1. While the intentional alteration of a promissory note in a material part, if made by a person claiming a benefit under it, or by his agent with his consent, with the intent to defraud the maker, will give the latter, at his option, the right to treat the note as void, in order to avail himself of this right he must elect to rescind the whole contract of which the note forms a part. He cannot enforce for his benefit a portion of that contract, and repudiate another portion of the same.

2. Even if a promissory note given for the purchase of land was afterwards fraudulently altered by the insertion therein of a promise to pay attorney's fees, and the maker would consequently have been entitled to rescind the contract of purchase, yet, where interest upon the note, as originally executed, was past due and unpaid, and suit was therefore brought for the recovery of the land, the defendant could not, without paying anything, absolutely defeat the plaintiff's action on the ground that the note was void. In order to keep the land, the purchaser would be obliged to comply with the terms of his contract of purchase, as expressed in the note, with the fraudulent alteration eliminated therefrom.

3. The verdict in this case was an absolute non sequitur from the pleadings and evidence, under any view of the law applicable, and a new trial must be granted.

(Syllabus by the Court.)

Error from superior court, Jones county; W. E. Jenkins, Judge.

Actions by William O. Glover against Lucy J. Green, and by the same plaintiff against Lucy J. Green and husband. The actions were consolidated. The decree was rendered for defendants, and plaintiff brings error. Brought forward from the last term. Code, §§ 4271a-4271c. Reversed.

R. V. Hardeman and Hardeman, Davis & Turner, for plaintiff in error.

W. Dessau, R. L. Berner, and R. Johnson, for defendants in error.

LUMPKIN, j. In 1886 F. F. Green was indebted to N. S. Glover upon promissory notes given for borrowed money, and secured by a mortgage upon a tract of land upon which Green and his wife resided. In November, 1888, Green having failed to pay any part of the principal or interest due on the notes, and being unable to do so, he and Glover had an accounting and settlement between themselves, by which it was ascertained and agreed that Green owed Glover something over $1,800; and, in consideration of that sum, Green then sold outright to Glover the land covered by the mortgage, executed and delivered to him a warranty deed to the premises, and took up and canceled the notes and mortgage above mentioned. The price thus paid for the land was its full value. Immediately after this transaction, Green proposed to buy the land for his wife at the same price, and Glover sold it to her; taking her note, payable in 10 years, but stipulating that Interest at 8 per cent. should be paid annually as rent, and at the same time delivering to her a bond conditioned to make her titles to the land upon her complying with her contract as expressed in the note. In this note was...