Investors' Syndicate v. Thompson
| Docket Number | 7746. |
| Decision Date | 14 February 1931 |
| Citation | 158 S.E. 20,172 Ga. 203 |
| Parties | INVESTORS' SYNDICATE et al. v. THOMPSON et al. |
| Court | Georgia Supreme Court |
Rehearing Denied Feb. 28, 1931.
Syllabus by the Court.
Exceptions not referred to in brief or argument are treated as abandoned.
The exception to the judgment overruling the demurrers to the petition is treated as abandoned, since the point so raised is not referred to in the brief or argument.
Oral request to charge that lender of money used to pay off security deed, knowing of other lien claims, was subrogated to lien of deed having priority to lien claimant, who did not consent to subrogation, held properly refused requests for instructions need not be given unless in writing presented before charge to jury; court must charge law applicable to every material issue, even in absence of request; charge on issue raised by pleadings, but unsupported by evidence, is error (Civ. Code 1910, § § 3270, 4276, 4530).
The court did not err in failing to give in charge an instruction on oral request or suggestion, as set forth in the second special ground of the motion for a new trial. Nor did the court err in the instructions upon the question of subrogation.
(a) Generally, the court is not required to accede to requests for instructions, unless they be in writing and presented to the judge before the commencement of his charge to the jury.
(b) It is the duty of the court to instruct the jury as to the law applicable to every material issue in the case, even in the absence of any request; but, where an issue, though raised in the pleadings, is not supported in the evidence, it is error to charge upon any issue which is not supported by evidence.
(c) The facts of this case did not require the court to present to the jury the theory of defense indicated in the oral request since the evidence was insufficientto support the alleged right of the defendants to be subrogated to the rights of the plaintiff.
Charge that defendants intended that plaintiffs' note should be second lien, not first lien, was not erroneous as argumentative or misleading.
When considered in connection with the pleadings and the evidence the instructions of which complaint is made would not warrant the grant of a new trial. While the language employed by the lower court may be inapt in diction, it could not have misled or confused the jury, nor could it have worked injury to the plaintiffs in error.
(a) As appears from the entire record, the Investors' Syndicate was contending that its security deed was of superior dignity to the plaintiff's claim; and therefore the statement that it was a contention of the defendants that plaintiff's notes "should not be a first lien, but should be a second lien in so far as its lien is concerned," was not such a misstatement of the contentions of a party as could have injuriously affected a jury of ordinary intelligence.
(b) What has been ruled as to Investors' Syndicate applies also to the other plaintiffs in error, since their rights depend upon application of the same principles as are applicable to the contention of the Investors' Syndicate.
Assignments of error not specifically referred to in brief and argument must be treated as abandoned.
Other assignments of error, not being specifically referred to in the brief and argument, must be treated as abandoned.
The evidence authorized the verdict, and the court did not err in overruling the motion for a new trial.
Error from Superior Court, Fulton County; Virlyn B. Moore, Judge.
Petition by J. J. Thompson and others against Investors' Syndicate and others. Judgment for plaintiffs, defendants' motion for new trial was overruled, and defendants bring error.
Affirmed.
Charge that defendants intended that plaintiffs' note should be second lien, not first lien, was not erroneous as misleading.
J. J. Thompson as the holder of 19 promissory notes for $30 each, executed by Robert G. Sharpe to I. E. Alverson, filed a petition against Sharpe and Alverson, and against R. L. Hilliard. These were the first 19 notes of a series of 55, each dated January 20, 1925, and due one each consecutive month beginning April 5, 1928, and they were secured by a deed to secure debt, conveying a parcel of land lying in the city of Decatur, De Kalb county. The remaining 36 notes were transferred by Alverson to Hilliard, and the deed securing the 55 notes was transferred to Hilliard on January 15, 1926. The transfer was recorded in the same volume and page of De Kalb county records where the deed was recorded. Plaintiff alleged that, according to the terms of the transfer of the deed from Alverson to Hilliard, there was nothing to show that Hilliard could not mark the same satisfied. None of plaintiff's 19 notes had been paid. Plaintiff prayed judgment against Sharpe as maker, and Alverson as indorser, for the principal and interest due on his said notes; that the loan deed executed to Alverson be foreclosed, and the property be sold and the proceeds of sale be paid to the plaintiff and to Hilliard, in accordance with their interest in the 55 notes. Alverson entered a plea of bankruptcy, and the case was dismissed as to him.
Hilliard answered substantially as follows: On January 15, 1926, Alverson transferred to him the loan deed from Sharpe to Alverson, and 36 of the notes described. The transfer was recorded on January 26, 1927, in Deed Book 192, page 599, of De Kalb county records, and Hilliard thus became a bona fide holder of said notes and the loan deed. He denies the allegation that in taking a transfer of said loan deed he had full knowledge that Sharpe had paid none of the notes held by plaintiff, and became a trustee for the plaintiff, and says that the loan deed was transferred to him by I. E. Alverson, to secure payment of his 36 notes. Sharpe procured a loan for $2,900 from Investors' Syndicate on or about January 19, 1927; and, in accordance with agreement with Sharpe and Hilliard, Sharpe paid Hilliard a part of the amount due on the 36 notes, and gave to Hilliard 39 new notes representing the balance due of $1,156.10, together with a loan deed to secure same, which was recorded in Deed Book 247, page 126, of De Kalb county records. Said loan deed and notes provided that, if any one of them remained unpaid for longer than 30 days, the entire series should become due and collectible at the option of the holder. The note for $29.20 due September 19, 1927, remaining unpaid, Hilliard on the first Tuesday in December, 1927, sold the property described in said loan deed before the courthouse door of De Kalb county, and it was bought by Mrs. Betty M. Hilliard for $200; that, when the loan made by Investors' Syndicate to Sharpe was closed, Hilliard delivered to Branham, Beckham & Co. the loan deed from Sharpe to Alverson which had been so transferred. When so delivered, said loan deed had on the face of same the following cancellation: On the date when Alverson transferred to Hilliard the loan deed executed by Sharpe to Alverson, Alverson executed to Hilliard a quitclaim deed to said real estate, reciting in that deed that it was made to secure Hilliard in the payment of the 36 notes assigned by Sharpe to Hilliard. The canceled papers above referred to are not now in his control, nor have they been since January 19, 1927, when they were turned over to Branham, Beckham & Co. to be delivered to Investors' Syndicate.
The plaintiff by amendment alleged that the quitclaim deed mentioned in defendant's answer was made for the purpose of defeating plaintiff's rights; that there was fraud and collusion between Alverson, Sharpe, and Hilliard for the same purpose; that the transfer of the loan deed by Alverson to Hilliard showed on its face that it only carried the last 36 of the 55 notes; that the loan by Investors' Syndicate was dated January 19, 1927, while the first of plaintiff's notes did not become due until April 5, 1928; that Investors' Syndicate made its loan, not only with constructive notice of the plaintiff's rights, but with actual knowledge that the said 19 notes were unpaid and outstanding; and that the foreclosure sale, where the property was bid off in Mrs. Hilliard's name, was for the purpose of defrauding plaintiff's rights. The plaintiff prayed that Investors' Syndicate and Mrs. Hilliard be made parties defendant and be enjoined from disposing of their interest, that a receiver be appointed to take charge of and sell the property to satisfy plaintiff's claim, and that his claim be adjudged a first lien on said property and the loan of Investors' Syndicate a second mortgage.
Investors' Syndicate demurred to the petition as setting forth no cause of action against it, by reason of the recording laws as to deeds, mortgage, and liens, and demurred specially to specified paragraphs of the petition as containing only conclusions of the pleader. It answered and denied that the quitclaim deed from Alverson to Sharpe was made for the purpose of defeating plaintiff's right, that the transfer from Alverson to Hilliard showed on its face that it carried only the last 36 of the 55 notes, and that Investors' Syndicate made its loan with constructive notice of plaintiff's rights and with actual knowledge that the 19 notes sued on were outstanding and unpaid. Investors' Syndicate further answered that it made a loan of $2,900 to Sharpe on the property in controversy; that, when said loan was made, there were outstanding against the property two loan deeds of the Merchants' & Mechanics' Bank and of Sharpe;...
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