Beavers v. Sueur

• Decision Date: 20 June 1939
• Docket Number: No. 12671,12671
• Citation: 3 S.E.2d 667
• Parties: BEAVERS . v. LE SUEUR et al.
• Court: Georgia Supreme Court

3 S.E.2d 667

BEAVERS .

v.LE SUEUR et al.

No. 12671

Supreme Court of Georgia

June 20, 1939.

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Syllabus by the Court.

1. The deed made by the defendant husband to his wife purporting to convey for a valuable consideration his equitable interest in land after execution of a security deed to the plaintiff was not shown by the petition to be invalid and subject to cancellation as a conveyance made by the husband to defraud the plaintiff as a creditor, it not appearing that the wife had any knowledge of such alleged fraud, or "ground for reasonable suspicion." Such conveyance to the wife was not subject to cancellation at the instance of the plaintiff on the theory that its mere execution and delivery imperiled his security.

2. An agreement by the grantor in a security deed to keep "all insurance premiums for insurance on the houses thereof, during the time this loan is in existence paid promptly, " does not require the grantor to carry any insurance payable to the grantee. Accordingly, although the grantor caused a policy of insurance upon a house or houses to be made payable to the grantee, since he was not required by the contract to maintain such insurance, the conveyance of his equitable interest to a third person, even if operating to avoid the policy, would not constitute a violation of the quoted provision of the security deed. Under this ruling, the petition did not show that the conveyance by the husband to his wife was subject to cancellation on the ground that it voided or imperiled the insurance policy which the plaintiff claimed to hold under the terms of the security deed.

3. A stipulation in a deed that it is given to secure a specified note and future advances, and that it "shall also operate as security for any and all other indebtedness which the grantor herein may now owe or may hereafter owe to grantee, " does not embrace a contingent and unliquidated claim for damages based upon an alleged breach by the grantor of an independent contract of employment entered into by him in his professional capacity as an attorney at law; hence the security deed was not subject to foreclosure for the enforcement of such claim.

4. So far as the petition sought foreclosure of the security deed to enforce payment of the note, it was not subject to dismissal on general demurrer, although there was no allegation that this debt was past due.

Error from Superior Court, Sumter County; W. M. Harper, Judge.

Suit by F. G. Beavers against R. L. Le Sueur and wife to foreclose a security deed as an equitable mortgage, to cancel a deed made by defendant Le Sueur to his wife, for appointment of a receiver, and for other relief. Judgment of dismissal on general demurrer, and plaintiff brings error.

Judgment reversed.

On September 29, 1938, F. G. Beavers filed a suit in the superior court of Sumter County against R. L. LeSueur and his wife, Mrs. LeSueur, seeking to foreclose as an equitable mortgage a security deed made by LeSueur to the plaintiff on February" 26, 1937, conveying described real property in the City of Americus, and to cancel a deed subsequently made by LeSueur conveying to his wife the same realty together with additional property, subject to the debt specified in the deed to Beavers. The petition prayed also for appointmentof a receiver, and for other relief. After two amendments were filed and allowed, the petition was dismissed on general demurrer, and the plaintiff excepted.

The deed from Le Sueur to the plaintiff conveyed six lots in a named subdivision, and recited: "This deed is given to secure an indebtedness of $1650, and any future advances not exceeding $500. This deed is made * * * to secure a note of even date herewith, made by the grantor to the grantee, the amount of which is expressed as the consideration herein, and due and payable as therein specified. This conveyance, is also made with the understanding and agreement that it shall operate as security for any and all renewals of the indebtedness herein described, and shall also operate as security for any and all indebtedness which the grantor may now owe, or may hereafter owe to grantee, its successors, transferees, and assigns, before the surrender and cancellation of this deed by the grantee, or its or their heirs, successors, or assigns. The grantor contracts and agrees to keep all taxes and all other assessments imposed by the laws of the State of Georgia, and all insurance premiums for insurance on the houses thereof, during the time this loan is in existence paid promptly, and upon the default of the grantor herein to pay such taxes, assessments, insurance, or any of the principal maturing installments of the original debt, or the interest then due, the' grantee may pay any such for the grantor, which shall become a part of the original debt and draw interest at the same rate; and grantee shall also have the option to declare the entire debt, including all interest, taxes, assessments, and insurance due thereon, and proceed without delay to collect the same." The deed from LeSueur to his wife recited that it was made "in consideration of the sum of $10 and good and valuable considerations, in hand paid, " and also: "There is an outstanding security deed in form [favor] of F. G. Beavers for the principal sum of $1650 on the last two lots, and also on lots 1, 2, 3, and 4 in block 'D' above described, which deed is recorded in deed book 18 page 379, which grantee herein agrees to pay off. She does not assume personal liability for said indebtedness, however; and it is so understood between the parties hereto." The petition did not show that the note for $1650 expressly mentioned in the plaintiff's security deed had matured by its terms. The plaintiff sought, however, to foreclose the security deed, not only as to this indebtedness, but also for the additional sum of $1882.35, claimed by the plaintiff as damages against the defendant LeSueur as an attorney at law for his alleged breach of contract in failing to exercise ordinary diligence and reasonable skill in the management of described litigation in which he had been employed by the plaintiff in April, 1936, and which was not terminated until April, 1938. See Beavers v. Cassells, 56 Ga.App. 146, 192 S.E. 249; Beavers v. Cassells, 186 Ga. 98, 196 S.E. 716. As basis for such foreclosure, as well as for the claimed right to equitable cancellation of the deed from LeSueur to his wife, only the following allegations were made in the original petition:

"4th: Your petitioner further employed the said LeSueur as his attorney to represent him in the enforcement of your petitioner's execution from the city court of Leesburg against one Cassells, in the sum of $1029.83 principal, $438.49 interest, $13.35 costs, and $146.83 attorney's fees, which had been levied on certain lands in Lee County, Georgia, which lands belonged to the said defendant Cassells, and which lands your petitioner claims were in value worth the amount of the said execution, and the said Cassells had filed an illegality to the said levy.

"5th: It was a part of the contract with the said LeSueur that he would use at least ordinary diligence in the performance of his duties as an attorney, and reasonable skill in the management of the case; and the said LeSueur breached the said contract of attorney with your petitioner in the following particulars: (a) The said LeSueur failed to attend the court where the said illegality came up for trial; and the said illegality was decided against your petitioner, by reason of no attorney there to represent the case, (b) The said LeSueur failed to file a traverse to the said illegality, to make the issue thereon, (c) The said LeSueur then advised petitioner to make, and made, motions in the case for a new trial or rehearing of the matter, which was overruled by the judge of the city court of Leesburg, and the attorney aforesaid undertook to certiorari the case to the superior court and bring it by certiorari before his honor Judge Harper of the Southwestern circuit; but the said LeSueur failed to have the exhibits certified, so that the evidence by exhibitswhich were vital to the hearing of said certiorari was not before the court, and the court could not consider the evidence by the said exhibits in their uncertified condition, (d) When his honor Judge Feeney of the city court of Leesburg made his answer to the certiorari in the incomplete form aforesaid without certified exhibits, the said LeSueur failed to file exceptions or a traverse to the answer aforesaid, and accepted the same in its fatally incomplete form as the final basis for the certiorari petition, (e) The said LeSueur then advised petitioner to carry, and carried, the case to the Court of Appeals of Georgia, where the merits of the case could not be heard, because of the incomplete answer of Judge Feeney and the failure to certify exhibits as aforesaid, and the failure to except to or traverse the said answer of Judge Feeney as aforesaid, (f) The said LeSueur then put your petitioner to further expense by advising your petitioner to carry and carrying the case by certiorari to the Supreme Court of Georgia, when the same lack of foundation for any hearing of the merits of the case had already meant the death blow of your petitioner's case and the destruction of his execution and the loss of the amount thereof, all to the further expense of your petitioner. (g) The said LeSueur then brought an equitable petition against the said Cassells, in Sumter superior court, which was fatally defective from the beginning, and went out on general demurrer, based upon the claim of perjury on the part of the said Cassells in the affidavit of illegality when the said Cassells was not convicted of perjury, (h) The said LeSueur then carried the aforesaid case to the Supreme Court of Georgia at the additional expense to your petitioner, when the Supreme Court decided the same in eight (8) days against your petitioner, because your petitioner did...