Citizens' & Southern Bank v. Seigler
| Decision Date | 17 January 1929 |
| Docket Number | 6498,6512. |
| Citation | 146 S.E. 485,167 Ga. 657 |
| Parties | CITIZENS' & SOUTHERN BANK v. SEIGLER et al. SEIGLER et al. v. CITIZENS' & SOUTHERN BANK. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The court did not err in overruling the plaintiff's motion to strike the answers of the defendants, and for a verdict and judgment against the defendants; it appearing from a review of the record that the amendments offered by and allowed in behalf of the plaintiff had materially changed the cause of action in several respects.
The ruling just announced is controlling in the decision upon the assignment of error in reference to the court's allowing the defendants' answers after refusal, on the plaintiff's motion, to strike the answers and to enter verdict and judgment.
The evidence authorized the verdict.
The fourth ground of the motion for a new trial as amended containing merely a recital of certain evidence delivered upon the trial, which merely tends to show that there was conflict as to a material point, but containing no assignment of error whatever, presents nothing for the consideration of this court.
A written entry of payment, alleged to have been made in a book in behalf of one who has made such payment, is not higher or better evidence than the oral testimony of the person who himself made the payment; and the court did not err in overruling an objection to the testimony of the witness that he paid $406 in a named transaction, upon the ground that the book entry of the payment was the highest and best evidence.
The exception contained in the sixth ground of the motion for a new trial is not meritorious. The instruction given the jury while not responsive to the inquiry made, was neither confusing, misleading, nor an incorrect statement of the law. A direct response to the inquiry propounded would have led the jury away from the issues in the case, and injected an element foreign to the issues properly before the court.
The seventh ground of the motion shows no error.
Error from Superior Court, Richmond County; A. L. Franklin, Judge.
Equitable petition by the Citizens' & Southern Bank against A. M Seigler and others. Judgment for defendants, plaintiff's motion for new trial overruled, plaintiff brings error, and defendants file cross-bill of exceptions. Affirmed on main bill of exceptions; cross-bill dismissed.
Paul T Chance, of Augusta, for plaintiff in error.
J. P. Stephens and Peebles & Bowden, all of Augusta, for defendants in error.
On February 14, 1925, Claud T. Burnett sold a house and lot in Augusta to Thomas Randall for $1,500, of which Randall paid $250 in cash, and for the $1,250 he executed notes payable monthly to Burnett. A contract of sale was executed by the parties, which contains all the powers and authority usually contained in security deeds. Burnett transferred the purchase-money notes to the Citizens' & Southern Bank, and delivered with them his copy of the contract of sale. After paying the first six of the monthly installment notes at the bank, Randall abandoned the property and moved to Florida. Burnett, being the ostensible owner after Randall's abandonment of the premises, sold the property to Sam Sexton, giving him a warranty deed and receiving from him a security deed to the property, dated April 30, 1925, reciting a consideration of $400, payable in monthly installment notes. This deed and the notes which it secured were also transferred by Burnett to the bank on May 13, 1925. The deed was duly recorded on May 14, 1925. Thereafter three of the installment notes due by Sexton were paid at the bank, and four of the Randall notes. The bank paid the full value of both the Randall and Sexton notes by advances to Burnett. On August 20, 1925, Sexton made a security deed to Amanda M. Seigler, reciting a consideration of a loan of $700. This deed was recorded on August 25, 1925, and on the same day the security deed held by the bank was entered canceled across the face of the record thereof. The cancellation appears to have been executed by Burnett and witnessed by J. Paul Stephens.
The Citizens' & Southern Bank brought an equitable petition to the September term, 1926, of the superior court, based upon the notes transferred to it by Burnett, and prayed that its lien upon said notes and the collateral transferred to secure the same be decreed to be a first lien on the property. Burnett was named as the principal debtor, and Randall, Sexton, and Mrs. Seigler were joined as defendants. Personal service was perfected upon each of them, except Randall, who had moved to Florida. After service, Burnett absconded. In the tenth paragraph of the petition it is alleged that the bank "accepted the said security deed executed by said Randall Sexton, and the notes therein described, from the said Burnett in good faith, not knowing at the time that the said deed covered the same property as that previously sold to the said Randall, and petitioner has never by act or deed ratified said last sale." It is stated in the eleventh paragraph that each of the defendants had notice, actual and constructive, of the rights and equities of the defendant Randall and the petitioner in and to said property and under said bond for title and purchase-money notes, such notice being that of possession in said Randall and record notice. It was prayed that petitioner have a general judgment against Randall, and that service by publication be had upon Randall.
On September 12, 1927, Mrs. Seigler filed a motion to dismiss the petition, because: (1) The petition sets forth no cause of action and no equitable grounds for relief. (2) There has been no service upon Randall, he being an indispensable and necessary party, and no facts are alleged which would authorize a judgment against Burnett or Sexton. (3) The petition is repugnant in essential elements, the fourth paragraph alleging that "for value received the defendant Claud T. Burnett did thereupon transfer to petitioner the said notes by indorsement and the said bond for title by delivery," whereas paragraph 3 of the petition, alleging that the note attached as Exhibit B, contains the same language, terms, and conditions, whereas Exhibit B shows no indorsement of said note as alleged in paragraph 4. (4) The petition sets forth no cause of action, even if said notes were indorsed by Burnett to the plaintiff, inasmuch as it is alleged that said bond for title was transferred only by delivery, and such delivery would not transfer or create any right, title, or interest in the land described in the bond for title; the plaintiff's case being predicated upon the theory that manual delivery of the bond for title conveyed a right or title in and to the land from Burnett to the plaintiff. (5) It appears from the petition that Sexton made a conveyance of the land to Mrs. Seigler on August 20, 1925, and that the bond for title between Burnett and Randall was not recorded prior to the conveyance by Sexton to Mrs. Seigler, and that at no time said bond for title from Burnett to Randall has been transferred or assigned to the plaintiff. (6) There is no allegation that plaintiff accepted the Sexton notes and security deed without knowledge that the Sexton deeds covered the same property previously conveyed by Randall. (7) There is no allegation of any actual constructive knowledge on the part of this defendant of any equities in favor of the plaintiff, and no facts are stated from which the same might be inferred.
In response to this motion the plaintiff filed amendments: (1) By adding to the allegations of paragraph 6, relating to the security deed from Sexton back to Burnett and the alleged indebtedness of $400, the statement that said security deed was recorded in the office of the clerk of the superior court of said county on May 14, 1925. (2) By striking from line 2 of paragraph 10 the name "Randall," and inserting in lieu thereof the name "Sexton." (3) By alleging that the two conveyances, referred to in paragraphs 5 and 6 of the original petition, represented the consummation of a second attempt to sell said property by Burnett, whereby Sexton agreed to pay therefor $400 (the amount of said security deed) and the outstanding notes of Randall for the balance of the purchase price; that the security deed executed by Sexton recites that it "is given subject to a security deed in the sum of $1,250"; that, except as part of the consideration of said sale, the security deed from Burnett to Sexton was without any consideration; that Mrs. Seigler had actual notice of all of the foregoing facts; that she had constructive notice of plaintiff's first lien of $1,250, from the record of said security deed from Sexton to Burnett. These amendments were allowed. A further amendment substituted, in one of the prayers, the name "Burnett" in lieu of "Randall."
At the appearance term an entry was made upon the docket that the case was in default. The court having allowed these amendments and having denied Mrs. Seigler's motion to dismiss the action, the plaintiff moved for an order striking the answers filed by Mrs. Seigler and Sexton, and for verdict and judgment in favor of the plaintiff. This motion was overruled, and the court allowed the defendants to file their answers, upon the ground that the amendments filed by the plaintiff materially changed the cause of action. Exceptions pendente lite to these rulings were taken by the plaintiff and by Mrs. Seigler and Sexton. Upon the trial questions of fact were submitted to a jury, who returned a verdict in favor of the plaintiff against Burnett for $1,530, principal, and interest, also finding that the attorney for Mrs. Seigler did not have sufficient notice to put a prudent man on inquiry which, if he had diligently...
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