Fletcher v. Fletcher, (Nos. 4080, 4093.)
| Decision Date | 30 September 1924 |
| Docket Number | (Nos. 4080, 4093.) |
| Citation | 124 S.E. 722,158 Ga. 899 |
| Parties | FLETCHER . v. FLETCHER et al. FLETCHER et al. v. FLETCHER. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
Error from Superior Court, Ben Hill County; D. A. R. Crum, Judge.
Action by e. L. Fletcher against T. Y. Fletcher and others. Judgment for defendants and plaintiff brought error, and defendants cross-error. Reversed on main bill of exceptions, and affirmed on cross-bill.
In 1012 e. L. Fletcher owned a lot of land of: !:;:; acres in Irwin county and wanted to borrow money thereon. His brother, J. e. Fletcher, also owned land, and wanted to borrow money. Goth brothers thinking that the financial standing of J. e. Fletcher was such that he could better succeed in getting leans for both by having the title to e. L. Fletcher's land in his name. e. L. Fletcher made an unconditional deed to his land to J. e. Fletcher for the purposes stated. J. E. Fletcher carried out the plan as agreed and succeeded in getting the desired loan for e. L. Fletcher, and also a loan for himself. e. e. Fletcher remained in possession of his land. At the time of the above agreement J. e. Fletcher was indebted to his brother, T. Y. Fletcher, and later became still further indebted to T. Y. Fletcher. In consideration of his then and further indebtedness to T. Y. Fletcher, e. e. Fletcher agreed to have J. e. Fletcher convey the title to said land to T. Y. Fletcher, with the understanding and agreement that the latter hold the title as security for such indebtedness as e. L. Fletcher owed or might afterwards owe to T. Y. Fletcher; the conveyance, however, being subject to a loan of $3,300 on e. e. Fletcher's land, which had been borrowed by him in accordance with the agreement with J. e. Fletcher. The deed from J. e. Fletcher to T. Y. Fletcher was made on July 10. 1012, being a regular warranty deed of conveyance, subject to the loan deed of $3,300 which had been made by George M. Forman, and was accepted by T. Y. Fletcher to be held only as security for the indebtedness due by e. e. Fletcher to T. Y. Fletcher, and any further indebtedness to him, with the agreement that T. Y". Fletcher would re-convey the property to e. L. Fletcher upon the payment of such indebtedness. At the time of this agreement e. I>. Fletcher was in actual possession of this land, and T. Y". Fletcher knew that the title bad been originally conveyed to J. e. Fletcher for the purposes above stated.
In January. 1918, T. Y. Fletcher owned, subject to loan deed or deeds, a large body of land, consisting of various lots in Irwin, Turner, and Tift counties. Among them was a lot of land known as No. 15 in the second district of Turner county, containing 550 acres. T. Y. Fletcher had conveyed this body of land, embracing said lot, by deeds to secure debts amounting to $83,000. T. Y. Fletcher intended to give his daughter, Mis. McCowan, lot No. 15, but, as she preferred, and he later preferred, for her to get the above tract of 333 acres owned by e. L. Fletcher, an exchange of these two lots was agreed to between e. L. Fletcher and T. Y. Fletcher; and in order to clear the title to lot No. 15 T. Y. Fletcher "was undertaking to arrange, and claimed to have arrangement made, whereby he was to sell off some of his lands out of the sale, of which about 833, 000 of his indebtedness was to be paid, and his debt reduced to that extent, " and thereby to procure the release from incumbrance of any kind of lot No. 15. Thereupon a tripartite agreement was made between said t. Y. Fletcher, Mrs. McCowan, and E. E. Fletcher, that T. Y. Fletcher either had given or would give to Mrs. McCowan lot No. 15, and would at once carry out the plan and procure the release of this lot from bis security deed, and all other incumbrances, and that there should be an exchange of lands between him and E. L. Fletcher, so that the latter would acquire lot No. 15, free from all incumbrance, and Mrs. McCowan should have and acquire the 333 acres of E. L. Fletcher. The indebtedness against e. e. Fletcher's tract of 333 acres had been taken up by T. Y. Fletcher, and E. L. Fletcher was indebted to T. Y. Fletcher for the amount so paid, the same to be taken into account in the accounting necessary for a settlement of the mutual indebtedness or accounts between them.
It was further agreed that T. Y. Fletcher and Mrs. McCowan would build a good and substantial dwelling house on lot No. 15 at their own expense, as well as furnish E. E. Fletcher with two mules as further consideration for the exchange. This agreement was carried out promptly "to the following extent, " that E. E. Fletcher surrendered to Mrs. McCowan his 333 acres, and she entered into possession, and T. Y. Fletcher and Mrs. McCowan surrendered possession to E. E. Fletcher of lot No. 15, and E. E. Fletcher entered into possession solely under and by virtue of said contract, and T. Y. Fletcher delivered to E. E. Fletcher the two mules agreed uj>on. T. Y. Fletcher then undertook to carry out his agreement to obtain the full release of lot No. 15 from the security deed above mentioned, and to clear the title thereof absolutely. Ever since the exchange Mrs. McCowan has been in possession of E. L. Fletcher's tract of 333 acres, and E. L. Fletcher has been in possession of lot No. 15. The incumbrance on lot No. 15 is in excess of the value of the land, and the incumbrance on the 333 acres has already been removed. It was an essential condition to trie completion of the contract of exchange, that the loan deed and all other incumbrances should be removed from lot No. 15, as obligated by T. Y. Fletcher. While T. Y. Fletcher attempted to clear the title to lot No. 15, as he had agreed, this land lot has now been involved in extensive litigation between T. Y. Fletcher and the holder of the security deed and others, and T. Y. Fletcher is totally unable to carry out his contract to clear the title. Mrs. McCowan was a party to the obligation to clear thetitle, though the means necessary for that purpose were to be furnished by T. Y. Fletcher. T. Y. Fletcher and-Mrs. McCowan are totally unable to carry out their obligation under said agreement to clear the title to lot No. 15. This would not have required more...
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