Francis M. Long Et Ux v. Bullard

• Decision Date: 31 August 1877
• Citation: 59 Ga. 355
• Parties: Francis M. Long et ux., plaintiffs in error. v. Daniel Bullard,defendant in error.
• Court: Georgia Supreme Court

59 Ga. 355

Francis M. Long et ux., plaintiffs in error. v. Daniel Bullard, defendant in error.

Supreme Court of the State of Georgia

(August Term, 1877.)

[Jackson, Judge, having been of counsel, did not preside in this case.]

Equity. Amendment. Homestead. Estoppel. Deeds. Before Judge Hill. Bibb Superior Court. October Adjourned Term, 1876.

Reported in the decision.

R. F. Lyon; R. W. Jemison, for plaintiffs in error.

*Lanier & Anderson, Hill & Harris, for defendant.

WARNER, Chief Justice.

The plaintiff brought his action against the defendants on a promissory note, payable to him or bearer, for $1,220.00, dated 18th November, 1872, due twelve months after date. The defendants filed various defenses to said action in their several pleas thereto, such as the discharge in bankruptcy of F. M. Long, that Betsy A. Long was his wife and a feme covert at the time she signed the note, that it was given for a debt of her husband, that she never read it and did not know the amount of the note, etc. Whereupon the plaintiff made a motion to amend his declaration, which was in the common statutory form, by inserting therein and annexing thereto, as a part thereof, a proceeding in the nature of equitable relief, in which he alleged, amongst other things, that the said Long was indebted to the Ocmulgee Building and Loan Association, that the note was given to the plaintiff to obtain money to pay that debt, which was secured by mortgage on defendant's property; that, prior to the foreclosure of said mortgage, defendants had obtained a homestead on the property, and, to secure the plaintiff for the money so advanced by him for which said note was given, the defendants, on the 11th of November, 1872, executed a deed to said property to the plaintiff, which was described therein as having been set apart as a homestead, the consideration mentioned in said deed being $1,180.00, which was approved by the ordinary of Bibb county; that plaintiff's debt was not proved in the bankrupt court; that the title to the property conveyed by the deed was vested in the plaintiff as a security for the payment of the note sued on, and prayed for a decree that said property mentioned in said deed might be sold at sheriff's sale, and so much thereof as equals the amount due on said note be applied to the payment thereof, and the surplus, if any, be paid to the defendants, which amendment was allowedby the court over defendants\' objections. *On the trial of the case, the jury, under the charge of the court, found a verdict for the amount of the note, and also decreed a sale of the property as prayed for in plaintiff\'s amended declaration, and that the proceeds thereof be applied to the plaintiff\'s debt and costs, and the surplus, if any, be paid over to F. M. Long. The defendants made a motion for a new trial, on various grounds, which was overruled, and the defendants excepted.

1. Was the court right in allowing the amendment to the plaintiff's declaration? All parties, whether plaintiffs or defendants, in the superior or other courts, (except the supreme court,) whether at law or in equity, may, at any stage of the cause, as matter of right, amend their pleadings in all respects, whether in matter of form or of substance, provided there is enough in the pleadings...