Duke v. Culpepper

• Decision Date: 28 February 1884
• Citation: 72 Ga. 842
• Parties: Duke. vs. Culpepper.
• Court: Georgia Supreme Court

72 Ga. 842

Duke. vs. Culpepper.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1884.

Mortgage. Pleadings. Amendment. Before Judge Fort. Macon Superior Court. November Term, 1883.

Reported in the decision.

W. H. Fish, by brief, for plaintiff in error.

J. W. Haygood; W. A. Hawkins, for defendant.

Hall, Justice.

J. W. Culpepper signed a note payable to the plaintiff, and added to his signature the words, "trustee for Elizabeth Culpepper." At the same time he executed a mortgage for the security of this said note upon certain personal property, which it is admitted belonged to her, describing himself therein as J. W. Culpepper, " trustee for Elizabeth Culpepper, " and adding to his signature of the same, " trustee, " etc. An attempt was made to foreclose this mortgage against Elizabeth, and the affidavit of foreclosure set forth that she was indebted on said mortgage a given amount, then due, and further, that J. W. Culppeper, who signed the note which the mortgage was given to secure, was acting in the execution of the note and mortgage as her agent, and that the plaintiff, in taking the same, gave credit to her as principal of said agent, and looked to her for the payment of the indebtedness. Execution was issued upon this alleged foreclosure, and levied upon the property described in the mortgage. The defendant arrested this levy by a counter-affidavit, in which she denied that she ever signed the note and mortgage, or that the same were ever signed by any one authorized by her to execute them, or that the property which purported to be thereby conveyed was subject to the execution issuing upon the foreclosure, or that the same was even incumbered by the mortgage.

The issue thus made coming on for a hearing, a motion was made by defendant to dismiss the proceeding, whenplaintiff\'s counsel proposed to amend the affidavit of foreclosure by adding thereto, that plaintiff sold the mortgaged property to defendant for the sum mentioned in the note; that he delivered the same to her, and that she promised to give her note for the purchase money, and to execute a mortgage on the property so purchased to secure the payment of the note, —that she would have J. W. Culpepper, her husband, to sign them for her; but he, instead of signing her name thereto, signed his own as trustee for her; that he was never her trustee; that all parties, including J. W. Culpepper, intended to bind her and the property by this arrangement; and that it was especially her intention to be bound thereby, as if her name had been signed by her husband to said paper as her trustee.

This amendment when offered was rejected, and the defendant's motion to dismiss the proceeding was granted, and these are the errors assigned to the ruling and judgment of the court.

1. It is contended by the counsel for the plaintiff" in error that this mode of foreclosing a mortgage is a substitute for a bill in equity for that purpose, and that therefore as great a latitude, both of averment and amendment, should be allowed in the one proceeding as in the other.

Rawlings vs. Robson, 70 Ga., 595, is cited to show that where a husband signed a note with his own name, and added thereto, "agent for wife, " this addition indicated that the debt was hers, and that he was her agent; that a failure upon her part to plead non ost factum might be construed...