Horne v. Rogers

• Decision Date: 05 April 1900
• Citation: 35 S.E. 715,110 Ga. 362
• Parties: HORNE v. ROGERS.
• Court: Georgia Supreme Court

35 S.E. 715

110 Ga. 362

HORNE v. ROGERS.

Supreme Court of Georgia

April 5 1900

Syllabus by the Court.

1. One who bought land, paid a part of the purchase money, gave a promissory note for the balance, and took a bond for titles with knowledge of an existing incumbrance on the property and who subsequently entered into an agreement with the vendor recognizing liability on the note, and, in effect, the promise to pay therein contained, upon the vendor's removing the incumbrance, could not defeat a recovery upon the note, when on the trial of an action thereon brought by the vendor it affirmatively appeared that the latter had complied with the terms of the agreement, and could and would, on the payment of the note, have made the defendant a good title.

2. It was not on the trial of such an action a fact material to the case that the land declined in value after the note for the purchase money had matured, nor that, ordinarily, property under incumbrance was not marketable.

3. Nor was it good matter of defense that the defendant had never been placed in possession of the premises, it not appearing that he had ever desired possession, and it being shown that he could at any time have obtained possession on demand therefor.

4. The amendment to the petition offered by plaintiff pending the trial was subject to several of the objections set up in the special demurrer thereto, and was properly disallowed.

5. The absence of the judge from the court room while the trial is in progress, for a brief space of time, will not, in a case where the evidence demanded the verdict as rendered, be, in the light of the former rulings of this court, a sufficient reason to reverse the judgment, when such absence was known to counsel, and there was no request to suspend the trial, no objection to the absence, and no motion for a mistrial upon the judge's return. (a) The rulings made in O'Shields v. State, 6 S.E. 426, 81 Ga. 301, and Pritchett v. State, 18 S.E. 536, 92 Ga. 65 criticised and disapproved, but, in the absence of an application to review the same, they are followed in the present case.

6. The rulings on evidence were free from error; the charge, taken as a whole, fairly and properly submitted the case to the jury; the evidence demanded the verdict as rendered; and the court did not err in refusing to grant a new trial.

Error from superior court, Bibb county; W. H. Felton, Jr., Judge.

Action by E. A. Horne against A. M. Rogers for damages for fraudulent representations inducing the sale of land, in which defendant set up a counterclaim, and prayed judgment for the amount due on the purchase price. From a judgment in favor of defendant, and from an order denying plaintiff's motion for a new trial, plaintiff brings error. Affirmed.

Hugh V Washington, for plaintiff in error.

Minter Wimberly and Hardeman, Davis & Turner, for defendant in error.

COBB J.

On March 24, 1894, Horne brought suit against Rogers, making allegations which were, in substance, as follows: On May 4, 1892, plaintiff paid to defendant $400, and delivered to him notes for $350 and $750, due, respectively, on May 30, 1892, and May 4, 1893, and defendant delivered to plaintiff a bond conditioned to make title to a one half interest in a described lot of land upon the payment of the notes. Plaintiff was fraudulently induced to contract for the land by the representations of defendant that the $400 cash and the amount of the $350 note would be used to obtain a favorable settlement of a purchase-money claim on the land which was due one Carstarphen. Plaintiff did not know what the character or the amount of the claim of Carstarphen was, and paid the note upon the assurance that the two amounts above referred to would satisfy the Carstarphen claim, and would be used for that purpose. Plaintiff has since discovered that the claim of Carstarphen was secured by a mortgage upon the land, and that defendant failed and refused to apply any part of the money paid by plaintiff to the satisfaction of the same. Carstarphen instituted proceedings to foreclose the mortgage, which was pending on May 4, 1893, and for this reason plaintiff has refused to pay the note due on that date. By reason of defendant's failure to pay off the mortgage and make to plaintiff an unincumbered title, he was prevented from making a sale of the property, and sustained a loss thereby of $500, which would have been the profits arising from such sale. Damages are laid at $750 and interest and $500, and judgment prayed accordingly. The defendant in his answer admitted that the contract for sale had been entered into, that plaintiff had paid the $750, and that Carstarphen had a mortgage on the land, but denied the other allegations. Defendant alleged that plaintiff well knew at the date of the contract that the mortgage was in existence and was a valid lien on the property; that defendant has been always ready to pay whatever amount was due Carstarphen, but there was a dispute about the matter; that plaintiff knew this as well as that there was a suit pending to foreclose the mortgage, and was familiar with what constituted the defense to that suit; that defendant, in order to protect plaintiff and others who had purchased lots from him, on August 11, 1892, made a written agreement with plaintiff, providing that defendant should deliver to two named persons the note of plaintiff, due May 4, 1893, and two notes by other parties, and the proceeds of certain sales of land should be also turned over to these parties, all to be held until the termination of the suit between defendant and Carstarphen, when so much of them as was necessary should be applied to the satisfaction of the judgment obtained by Carstarphen; that, in consideration of this action of the defendant, plaintiff agreed not to bring any suit for the purpose of canceling the note due May 4, 1893, or recover back the $750 already paid, but reserved the right to bring action on the bond for titles in the event defendant failed to pay whatever judgment was recovered in the suit brought by Carstarphen; that plaintiff has never paid or tendered the balance due on the purchase price of the land, and defendant is and has ever been ready to make to plaintiff good and sufficient titles to the land, according to the terms of the bond, upon the payment of the purchase price. Defendant prayed judgment against the plaintiff for the amount due on the note, which matured May 4, 1893. By an amendment plaintiff alleged that the agreement of August 11, 1892, was entered into in consequence of certain false and fraudulent statements in reference to the matter of the controversy between defendant and Carstarphen, as well as in reference to a plan which defendant had by which the property could be sold and a profit realized by plaintiff; that defendant purposely delayed the trial of the foreclosure suit until May 14, 1896, when a judgment was rendered for the full amount claimed, which defendant threatened to further resist; that, as the notes deposited under the agreement of August 11, 1892, have not been paid, the consideration of that agreement has entirely failed; that defendant is insolvent. Plaintiff offers to surrender the bond for titles, and prays for a cancellation of the note due May 4, 1893, for $750, for a judgment against defendant for attorney's fees on account of bad faith, and for general relief. Defendant amended his answer by alleging that the note of plaintiff, due May 4, 1893, contained an agreement to pay attorney's fees; that the judgment in favor of Carstarphen has been all paid, except an amount equal to the sum due on the note of plaintiff; that Carstarphen has agreed that, upon the payment of the note to defendant, the mortgage execution shall be marked "Satisfied"; and defendant tenders to plaintiff a warranty deed to the land embraced in the bond for titles, and a cancellation of the Carstarphen mortgage, whenever plaintiff will pay the note due May 4, 1893. The prayer of the amendment was for a judgment against plaintiff for $750, besides interest and attorney's fees, and that upon payment of this judgment defendant make title free of all incumbrances to plaintiff to the property described in the bond for titles. When the case came on for trial the jury returned a verdict in favor of defendant against plaintiff for $750, with interest and attorney's fees, and upon this verdict the court entered a decree that defendant recover of plaintiff the sum mentioned in the verdict, and that, upon defendant filing with the clerk a good and sufficient warranty deed to the property described in the bond for titles, execution issue on the judgment, and that upon payment of the judgment the title vest in plaintiff. The plaintiff made a motion for a new trial upon numerous grounds, which was overruled. The case is here upon a bill of exceptions sued out by the plaintiff assigning error upon the judgment overruling the motion for a new trial, and upon a ruling in which an amendment by plaintiff was disallowed, which was the subject of exceptions pendente lite.

1. The evidence demanded a finding that plaintiff knew when he made the contract of purchase that there was an incumbrance upon the land. While he testified that he "did not know there was a mortgage on the property at the time of the trade," he admitted that he "knew from what Rogers said that there was a balance due Carstarphen, and that there was an incumbrance of some kind on it, and Rogers desired the money from [plaintiff] to remove the incumbrance." The evidence also demanded a finding that defendant had complied with the contract of August 11, 1892, and discharged his liability to Carstarphen, so that, upon the payment by plaintiff of the note due by him, defendant would be...