Dixon v. Ernest L. Rhodes & Co.

• Decision Date: 11 February 1932
• Docket Number: 21506.
• Citation: 162 S.E. 716,44 Ga.App. 678
• Parties: DIXON v. ERNEST L. RHODES & CO.
• Court: Georgia Court of Appeals

162 S.E. 716

44 Ga.App. 678

DIXON v. ERNEST L. RHODES & CO.

No. 21506.

Court of Appeals of Georgia, Second Division

February 11, 1932

Syllabus OPINION.

Creditor's agreement to accept warranty deed covering debtor's equity in certain lands held by creditor as security, in consideration of releasing balance of note, held not complete accord and satisfaction, where unexecuted.

Defense based on accord can be sustained only where accord has been completely executed.

Agreement of debtor to remain absent from foreclosure sale under security deed, for purpose of clearing title of execution lien, held unenforceable as agreement to defraud execution creditor.

Agreement for release of debtor's liability on note in return for placing title to land in creditor through foreclosure of security deed held unenforceable under statute of frauds (Civ. Code 1910, § 3222).

Agreement of holder of security deed to release remainder of debt in return for debtor's agreement not to bid at foreclosure sale held void as without consideration, where object of debtor's agreement to refrain from bidding was to defraud another creditor.

Agreement of the holder of security deed to release remainder of the debt was void for want of consideration, since the debtor's agreement to refrain from bidding at the foreclosure sale, having as its object and purpose to hinder delay, or defraud execution creditor, was illegal and void as a consideration, and since the creditor in foreclosing its security deed and selling the property was doing only that which it had a right to do, independently of the new agreement.

Agreement of holder of security deed to release remainder of debt in return for debtor's refraining from bidding at foreclosure sale held not removed from operation of statute of frauds by performance, where purpose of agreement not to bid was to defraud another creditor (Civ. Code 1910, § 3222).

Assignment of errors should specifically set forth error in final judgment if exception is taken thereto for error within itself.

Assignment of error, if based on rendition of judgment in vacation should show wherein judgment was wrong.

Error from Superior Court, Bacon County; M. D. Dickerson, Judge.

Action by Ernest L. Rhodes & Company against Miss A. E. Dixon. Judgment for plaintiff, and defendant brings error.

Affirmed.

Assignment of error, if based on rendition of judgment in vacation should show wherein judgment was wrong.

Ernest L. Rhodes & Co., a corporation, brought suit in the superior court of Bacon county against Miss A. E. Dixon upon a note for an alleged balance of $746.71.

The defendant filed an answer in which she alleged the following facts: That on May 15, 1925, the defendant executed the note sued on for the principal sum of $1,150, and conveyed to the payee certain real estate as security therefor; "that said deed to secure debt to said lands was given for the purpose of securing said note; that subsequent thereto one P M. Milians, who was at the time of the execution of the note sued on credit manager of said Ernest L. Rhodes Company, and who is now credit manager of Ernest L. Rhodes Company, plaintiff herein, came to Alma and agreed with the defendant to take the property above described in full payment of the balance due on said note; and defendant agreed thereto, and suggested that she make a warranty deed to the plaintiff in consideration of the balance of said note, all of which was agreed to by plaintiff and defendant, and would have been carried out as agreed except for the fact that there was a small execution against defendant, and said company, Ernest L. Rhodes Company, decided instead of defendant making them a warranty deed, to clear the title it would be better for them to foreclose the security deed that they held against defendant, and consequently, during the month of August, 1928, said plaintiff advertised said tract of land for sale at the courthouse door in Alma, and sold the same in full payment and extinguishment of the balance due on said debt; that this agreement to take the property in question and never to sue the balance of said note fully paid all and everything that defendant owed plaintiffs by reason of the note herein sued upon; that defendant in agreeing with said Ernest L. Rhodes Company, agreed not to bid at the sale of the property above described, so that the title to said property could be cleared to said tract of land, which as agreed was in settlement of said note and security deed; that in consequence of said agreement [defendant] did not bid at said sale; that had she known that plaintiff would not have carried out their agreement, she would have appeared at said sale and bid on said property and redeemed the same. *** Defendant further shows that although this property was taken over by the plaintiffs during the months of August and September, 1928, that plaintiff has charged, in said suit and on said note, defendant with the cost of roofing and the expense of labor and repairs on said building, the sum of $56.59. Defendant shows that she never at any time agreed or authorized anybody to buy any roofing or make any repairs on said building; that this roofing and the expense of repair was made during the year of 1930, almost two years after the property in question had been sold and taken over by the plaintiff."

The plaintiff made an oral motion to dismiss the answer, and also filed a special demurrer thereto. On February 11, 1931, in open court, the presiding judge passed an order reciting that upon agreement the "said case be continued for the term subject to a motion of plaintiff to strike defendant's plea, etc., agreed to be heard by the judge of said court, either in term or vacation, at his chambers in Douglas, Ga. on Saturday, Feb. 14, or any subsequent date by him fixed. It is ordered that motion be heard as agreed." On February 14 the following order was passed by the judge: "A motion to strike and demurrer filed by the plaintiff in the above entitled case coming on before me to be heard on this February 14, 1931, as previously ordered; by request of counsel for the defendant in said case said hearing is hereby...