Gunby v. Turner
| Decision Date | 15 July 1942 |
| Docket Number | 14206. |
| Citation | 21 S.E.2d 640,194 Ga. 378 |
| Parties | GUNBY v. TURNER. |
| Court | Georgia Supreme Court |
Rehearing Denied July 25, 1942.
Syllabus by the Court.
1. It being manifest from the recitals in the bill of exceptions who is the plaintiff in error and who the defendant in error the motion to dismiss on the ground that none is named or otherwise disclosed as such, is without merit.
2. The petition as amended, stating in substance a cause of action in view of the provisions of the Code, § 53-503, was not subject to dismissal on general demurrer.
3. The date of the transaction under attack being July 9, 1932 and the suit having been filed May 28, 1941, it does not show such laches on the part of the complainant wife as will defeat a recovery, although the petition contains an averment that her husband died on January 1, 1935, 'and that soon thereafter she learned that defendant herein had a security deed against her property,' the action being commenced promptly after the holder attempted to enforce against her and property owned by her a security deed which she alleges had been given to secure her husband's debt.
4. The absence of an averment that she is the owner or in possession of land contained in a security deed which a wife alleges was given to secure her husband's debt is not ground to dismiss on general demurrer a suit brought to cancel such deed and to recover from the holder thereof a payment theretofore made by her on the debt secured thereby.
5. A demurrer to a petition can reach only what is alleged therein. It is a challenge not to the truthfulness of the allegations, but to their sufficiency.
Mrs. Bess Bryan Gunby filed a petition against R. C. Turner to obtain judgment for $1,000 paid by her by way of reducing a loan deed for $3,000 executed by her to defendant, and praying that said loan deed be canceled of record as a cloud on her title to said individual property, on the ground that the deed was obtained from her by the fraudulent scheme of her former husband and this defendant by his attorney, to bind her own personal property for the payment of her husband's debts; and that defendant be restrained and enjoined from selling her property so fraudulently pledged for the payment of those debts. She alleged as follows: Her husband's business was in the hands of a receiver appointed by a court. He stated to her that he could secure a loan of $3,000 if she would sign a release as to her interest in his business; and that unless same were signed, he would lose all his business, which was going to be sold to the highest bidder, and thus leave him penniless. Knowing that she had no personal interest in his business, and being greatly influenced by her husband's statement, she went with him to the office of the defendant's attorney and signed the paper binding her own property, not knowing that she was doing so, but believing that what she signed pertained only to her husband's business, as was represented to her by him. The attorney for the defendant knew, at the time she signed the security deed, that she had no interest whatever in her husband's business, and knew that she received no benefit or money by executing the security deed. She signed the deed without being informed by defendant's attorney of its contents. This attorney knew that she was merely trying to relieve her husband from any obligation he may owe her; that she did not intend to sign away her own individual property; and it was not explained to her that she was doing so. The signing of a security deed to her individual property was due to the fraudulent scheme of her then husband and the defendant's attorney, neither of whom informed her of the contents of the paper. By amendment she alleges, that after her husband died she then for the first time learned that soon after she signed said loan deed her deceased husband transferred said business to her in furtherance of the fraudulent scheme to bind her as surety for his pre-existing debts; that after her husband died she took charge of the electrical business as heir at law of her husband, being under the impression that the debt then claimed to be owing to defendant was the debt of her deceased husband, and not her debt upon a paper signed by her binding her own individual property at the time of said signing; that when she sold a lot of land and with the proceeds paid $1,000 to the defendant, she understood she was merely paying a debt owing by her deceased husband, and not a debt represented by a security deed on her own property; and that 'she has paid interest at the rate of eight per centum since July 9, 1932.' She prayed for judgment against the defendant for the $1,000 so paid, and for an accounting.
This petition was dismissed on general demurrer, and the plaintiff excepted.
W. F. Moore, of Atlanta, for plaintiff in error.
Wm. F. Buchanan, of Atlanta, for defendant in error.
1. The bill of exceptions is captioned:
In the bill of exceptions it is stated that the case of Bessie Bryan Gunby against R. C. Turner, etc. (describing the character of the case), came on to be heard, etc. The order excepted to is recited, followed by the words, 'To this ruling the plaintiff in error then and there excepted,' etc. The motion to dismiss the writ of error, on the ground that no one is named or otherwise disclosed either as plaintiff in error or defendant in error, is denied. Joiner v. Singletary, 106 Ga. 257, 32 S.E. 90.
2. The petition is in many respects indefinite in its allegations but the exception is to a ruling sustaining not a special but a general demurrer. The heart of the petition, apparent on its face, is that the plaintiff, at the instance of her husband and with the knowledge of the defendant, executed a security deed on her separate property for the purpose of securing a loan to her husband of three thousand dollars; that from her own funds she paid to the defendant on said debt one thousand dollars; that the defendant is now advertising her property described in said security deed for sale under a power contained in that deed. She prays for judgment against him of one thousand dollars, that he...
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