Barnard v. Barnard

• Decision Date: 18 February 1955
• Docket Number: No. 35508,No. 2,35508,2
• Citation: 86 S.E.2d 533,91 Ga.App. 502
• Parties: W. R. BARNARD v. Bernice L. BARNARD
• Court: Georgia Court of Appeals

Page 533

86 S.E.2d 533

91 Ga.App. 502

W. R. BARNARD v. Bernice L. BARNARD.

No. 35508.

Court of Appeals of Georgia, Division No. 2.

Feb. 18, 1955.

On February 9, 1954, Bernice L. Barnard brought an action against his brother, William R. Barnard, on the following 'acknowledgment of indebtedness.

'Know all men by these presents: That whereas Bernice L. Barnard purchased from Siena B. Collat and Meyer L. Collat Lots Numbers 53, 54, 55, and 56 Gibbons Ward, City of Savannah, said State and county, and

'Whereas, said Bernice L. Barnard entered the armed services before said property had been fully paid for and the undersigned William R. Barnard completed the payments and accepted the deed in the name of said Bernice L. Barnard, the said Bernice L. Barnard having paid Seven Hundred Ninety ($790.00) Dollars of the principal indebtedness for the purchase price of said property, and

'Whereas, said Bernice L. Barnard has this day executed and delivered to me a warranty deed conveying said property to me, and I have not paid said sum of Seven Hundred Ninety ($790.00) Dollars.

'Now, therefore, in consideration of the premises I do hereby acknowledge an indebtedness to said Bernice L. Barnard of Seven Hundred Ninety ($790.00) Dollars to be paid by me to him without interest if and when I sell, exchange or otherwise dispose of said property.

'Witness my hand and seal this 30th day of August 1945.

'William R. Barnard.'

It is alleged in the petition that this acknowledgment of indebtedness was duty recorded in the office of the clerk of the Superior Court of Chatham County, and that on September 8, 1953, the defendant executed and delivered to Home Federal Savings and Loan Association of Savannah a warranty deed to secure debt on the lots enumerated in the acknowledgment of indebtedness, The giving of the security deed, the plaintiff alleges, caused the indebtedness, under the terms of the acknowledgment of indebtedness, to become due and payable and the defendant has refused to make payment upon demand.

The defendant's general demurrer to the petition was overruled by the trial court on June 7, 1954. Upon the trial of the case, the defendant moved to dismiss the petition on various grounds in the nature of general demurrers. The trial court in overruling this motion passed the following order in which, after relating the allegations of the petition, it said:

'To this petition, defendant filed a general demurrer on February 26, 1954, and the demurrer coming on to be heard at the June Term, on June 7, 1954, the general demurrer was considered and then overruled, there being a written order to that effect of record. The June Term of court expired on September 1, 1954, by operation of law (Georgia Laws 1953, p. 3312). There was no written exception filed to the order overruling the demurrer during the June Term, nor within sixty (60) days of the overruling of the general demurrer. There was no bill of exceptions filed within the time provided by law.

'Judgment and order: First: It is the opinion of the court that the judgment overruling the general demurrer signed and filed June 7, 1954, is now beyond the recall of this court. The judgment was in the breast of the court during the June Term but that term has now passed into history.

'Second: The court is also of the opinion that the judgment overruling the general demurrer was in order.

'This plaintiff sold real estate to defendant. Defendant made an agreement that if he sold or otherwise disposed of the real estate, he would, upon selling or otherwise disposing of the property, pay the $790.00 indebtedness. He did convey the property for $2000 by warranty deed to secure debt and he refused to pay the $790.00. The deed to secure debt gave title to the property and impairs the security of the $790.00 indebtedness and the court is of the opinion that the plaintiff is entitled to recover his money. If a person be permitted to make a conveyance by deed to secure debt, he may make the deed for the entire value or a large part thereof and thus defeat the purpose of the original agreement.

'Thereupon, the said motion to dismiss is overruled and denied.'

On the trial of the case, the court, after the plaintiff and the defendant had each closed his case, directed a verdict for the plaintiff.

The defendant assigns error on each of the trial court's three rulings, to wit: the overruling of the general demurrer to the petition, the overruling of the motion to dismiss in the nature of a general demurrer, and the direction of the...