Diana v. Monroe, 49407
| Decision Date | 04 September 1974 |
| Docket Number | No. 3,No. 49407,49407,3 |
| Citation | 209 S.E.2d 70,132 Ga.App. 669 |
| Parties | Francis X. DIANA v. Doyce P. MONROE et al |
| Court | Georgia Court of Appeals |
Thompson & Broadfoot, H. Dale Thompson, William L. Tribble, Dublin, for appellant.
David G. Mercer, Dublin, for appellees. Syllabus Opinion by the Court
Appellees were in dire financial difficulties and because of poor credit, could not obtain a loan from a recognized financial institution. Appellant, an attorney with 10 years law practice and several other years spent in the Florida real estate field, met Mrs. Monroe at her place of employment and learned of their problems. To alleviate their plight, he offered to loan them $1,000 cash and to satisfy two judgments outstanding against them; one for $1,291.54 and another for $518.27. Appellees accepted and went to appellant's office the night of July 24, 1968. There, they signed a warranty deed on a 36 acre tract of land where they lived in a trailer, their house having burned down previously. At the same time, they signed a 'rental-purchase' contract whereby they agreed to pay $27.72 monthly for 180 months, starting September 1, 1968, and upon payment the land would be reconveyed to them. A 'monthly repayment note' also was executed by the appellees. The latter two instruments reflected a $2,900 loan at 8% per annum for 15 years. The loan was $90.19 in excess of appellant's cash outlay and the amounts of the two judgments. Dispute existed as to the witnessing of the warranty deed and the rental-purchase contract. Appellees allege that only appellant was present at the time of execution, although the documents ostensibly show them to have been witnesses by a female and notarized by an attorney. Appellant alleges that appellees brought the documents already executed to his office after business hours on July 24, 1968, to get their money. The attorney testified that he went to appellant's office for the execution and witnessing. Neither the source of the witness, nor her whereabouts were known to either appellant or his former attorney. Appellant subsequently recorded the warranty deed.
Appellant paid appellees the $1,000 cash and later paid the largest judgment and it was transferred to his name on the court records. He never paid the $518.27 judgment, alleging that he thought his payment of $1,291.54 was in settlement of both judgments. About November, 1968, the appellant raised the monthly installment to $32.95 per month, which increased payments Mrs. Monroe allegedly continued to make. Appellant denied that all of such payments were made. On November 19, 1969, appellant allegedly sent appellees a notice that the contract was cancelled for default. There is no evidence that the envelope containing the notice bore proper postage. Appellees denied receipt of any such notice. Subsequently, the Monroes separated and moved. In 1971, Mrs. Monroe noticed an ad offering the property for sale. Mr. Monroe alleges that he then tried to buy it back for $2,900. Appellant denies that offer and states that Mr. Monroe asked him about buying the property and that he advised him that the price probably would be between $4,000 and $4,200. The property subsequently was sold by the appellant to an innocent third party for $5,000.
The Monroes filed suit alleging fraud in that: the warranty deed was merely to be security for repayment of the promissory note for $2,900; no one was present except the parties when the deed and other documents were signed, although they bore the signatures of a notary and a witness; and, that appellant subsequently recorded and sold the property relying on such fraudulently obtained deed. They further alleged a failure of consideration and that they were not in default. They sought $12,500 damages, less credit due, and for $10,000 as punitive damages. Appellant denied the allegation that: the warranty deed was security for the note; he was immediately to pay off the judgments; consideration had failed; the deed was fraudulently recorded; and, he was indebted to appellees in any amount. Appellant's motion for a summary judgment was denied. The jury returned a verdict of $10,000 general damages and $10,000 punitive damages. Appellant's motion for a new trial was denied and this appeal followed. Held:
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