Hawkins v. Collier

• Decision Date: 07 May 1897
• Citation: 28 S.E. 632,101 Ga. 145
• Parties: HAWKINS et al. v. COLLIER.
• Court: Georgia Supreme Court

28 S.E. 632

101 Ga. 145

HAWKINS et al.

v.COLLIER.

Supreme Court of Georgia.

May 7, 1897.

Bills and Notes — Consideration — Landlord and Tenant—Distress—Counter Affidavit — Pleading and Proof — Parties.

1. Although a promissory note recites a consideration, it is the right of the maker, when sued thereon by the payee, to prove by parol that there was really no consideration at all, and any facts pertinent to an issue thus arising are relevant.

2. The defendant in a distress warrant may, in his counter affidavit, not only deny any indebtedness for rent or otherwise, but may also set forth special matters of defense showing, by way of amplification and explanation, how and why the general denial is true. With or without such special allegations, it is the right of the defendant to support his defense by competent evidence.

3. The defendant in such a case is not, however, entitled to have another person made aparty, and invoke in his behalf equitable relief as to matters in which the defendant is in no way concerned.

(Syllabus by the Court.)

Error from superior court, Pike county; M. W. Beck, Judge.

Action by J. C. Collier against Mittie Hawkins on a note. Prom an order sustaining a demurrer to defendant's plea she brings error, and from a refusal to make Anderson Hawkins a party he brings error. Reversed as to order sustaining demurrer, and affirmed as to. refusal to make A. Hawkins a party.

J. S. Boynton and J. J. Rogers, for plaintiff in error.

S. N. Woodward, for defendant in error.

LUMPKIN, P. J. A distress warrant was sued out by J. C. Collier against Mittie Hawkins for $170, alleged to be due by her for the rent of a farm, to which she interposed a counter affidavit denying that she was indebted to him, for rent or otherwise, in any amount at the time the warrant was issued. By way of special defense, she alleged that "the note upon which said plaintiff claims that said rent was due and owing to him by her was given under the following circumstances, and is without consideration, and was obtained through fraud, and is therefore void: In the early part of 1895 the husband of this defendant, Anderson Hawkins, was indebted to said Collier to the amount of $33 for the unpaid balance of an account due him for 1894, " and the latter, becoming "uneasy, and fearing that he would lose the balance of the account due him by said Anderson Hawkins, came to the said Anderson Hawkins and this defendant, and told him that if he, said Anderson Hawkins, would make him a deed to the 100 acres of land, that he, said Collier, would rent it to defendant, said Mittie Hawkins, who was the wife of said Anderson H, for the year 1895, and would furnish them such provisions and supplies as they might need, to enable them to make their crops for that year, and in the fall of the year they, defendant and said Anderson, could pay him, said Collier, what he had advanced to them, and the balance of the account due him by said Anderson on the account for 1894, as that was all he wanted them to do, and that they could have the balance of their crops to do as they pleased with, and that in this way they might be able to redeem their land and keep it from selling." Accordingly, "she and her husband, Anderson Hawkins, relying on these representations and promises made them by the said J. C. Collier, and believing that they could, by working hard and making a good crop, pay Mr. Collier all they might owe him on said old account and for supplies to be furnished them, " accepted the proposal made to them by Collier, and, "upon these conditions and promises, the said Anderson Hawkins made and executed to the said Collier a deed to the 100 acres of land, and transferred to him the bond for title that he held from W. C. Jenkins to 50 acres more, so that the whole might be put in and Included in said arrangement to secure Mr. Collier what they might owe him; and thereupon this defendant, Mittie Hawkins, as a part of the scheme and arrangement to secure said Collier the amounts past due and to become due to him during the year 1895, made and executed to the said J. C. Collier the notes which are the foundation of said distress warrant, and upon which said J. C. Collier is claiming that this defendant owes him for rents." "Anderson Hawkins was in possession of said lands at the time said arrangement was made, and it was known to and understood by said Collier that he, Anderson Hawkins, was to remain in possession thereof, and that he did retain possession, and never at any time during the year did he go out of possession thereof, nor recognize the possession of either J. C. Collier or Mittie Hawkins." The defendant further alleged that the plaintiff had been fully paid "for all that she and her husband, Anderson Hawkins, owed him for supplies and advancements made them for 1895, and the old account of Anderson Hawkins for 1894, and was not indebted to him in any sum when said distress warrant was sued out."

On demurrer, the plea setting up the defense above recited was stricken, and the court refused to allow the defendant to introduce any evidence to prove the facts therein alleged. The grounds upon which the plaintiff based his demurrer were (1) that the defendant was attempting "to set up the fact that the rent contract entered into by plaintiff and defendant was a part of a fraudulent arrangement or contract participated...