Loftis v. Clay
| Decision Date | 23 September 1927 |
| Docket Number | 5580. |
| Citation | 139 S.E. 668,164 Ga. 845 |
| Parties | LOFTIS et al. v. CLAY. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
The court did not err in striking the answers of the defendants Loftis and the Griffin Investment Company.
After the answers of the defendants had been stricken, the court did not err in directing a verdict in favor of the plaintiff and in entering a decree thereon. Under the provisions of section 5652 of the Civil Code of 1910, it was unnecessary to introduce any evidence in the present case, since the court had stricken the answers of the defendants, and they did not offer any other or further defense by way of plea or answer.
Error from Superior Court, Fulton County; John D. Humphries, Judge.
Suit by T. A. Clay against W. S. Loftis and another. Judgment for plaintiff, and defendants bring error. Affirmed.
McElreath & Scott, of Atlanta, for plaintiffs in error.
Bryan & Middlebrooks and John A. Dunaway, all of Atlanta, for defendant in error.
Clay filed suit against W. S. Loftis and the Griffin Investment Company, praying that Loftis be required to specifically perform the terms of a certain contract, and that the Griffin Investment Company be required to surrender and cancel a deed to secure debt, and, in the event that Loftis should not be able to perform his contract, that petitioner have judgment against him for $3,000. On September 25, 1925, the defendants filed their answers to the petition. The plaintiff demurred to the answer of Loftis, and made a motion to strike the answer of the Griffin Investment Company. Upon a hearing, the trial judge struck the answers of both defendants, and they tendered exceptions pendente lite. On June 24, 1926, the judge directed a verdict in favor of the plaintiff, and a decree was entered thereon. To the striking of the answers and to the direction of the verdict the plaintiffs excepted. Error was specially assigned upon the ground "that the court directed said verdict and rendered said judgment upon the pleadings as they stood after having stricken said answer; the petition not being verified by affidavit, and no evidence being introduced in proof of the allegations therein."
The case made by the plaintiff rested upon the following alleged facts: Clay and Loftis had entered into a written contract by which Clay agreed to sell Loftis 300 acres of land, located as described in the petition, for $12,500. This price was to be paid, $25 on the signing of the contract, $4,775 on the delivery of a deed, and the balance of $7,700 was to be paid by the purchaser assuming a loan of that amount secured by a loan deed covering the property conveyed to Loftis by Clay and also another tract of 45 acres as described in the petition, which was not sold to Loftis by Clay. The two payments aggregating $4,800 were duly made in cash, and the petitioner thereupon executed his warranty deed pursuant to the terms of said contract, and Loftis went into possession of the property "included in his deed." When the loan of $7,700 fell due, Loftis only made a partial payment and failed to pay the balance of the loan as he had agreed and undertaken to do in the alleged contract, but instead procured the Griffin Investment Company to pay off the loan for him and take a transfer of the note and deed from the Phoenix Mutual Life Insurance Company, the original creditor of Clay and the grantee in the security deed originally executed by Clay. Loftis paid to the Griffin Investment Company all of said loan except $3,000, and had said company to execute to him its quitclaim deed to all the land described in said deed to secure debt, which Loftis had bought from Clay, thus releasing it from the lien of the deed to secure debt, but allowing the lien of said deed to remain as against the 45 acres owned by Clay which had originally been included in said deed to secure debt. Loftis now claims that the sum of $3,000 is still due on said loan, and that said debt is a lien only against the 45 acres of petitioner and refuses to comply with his contract and pay the balance of the consideration for the land, asserting that he has paid the amount due against the land he purchased; and the Griffin Investment Company, acting only for and in behalf of the said Loftis and at his instance, declines to cancel the said deed to secure debt now held by it. The petition prayed that Loftis be required to specifically perform his contract and complete the payment of the entire $7,700 loan; that the Griffin Investment Company be required to surrender and cancel its deed to secure debt; and, if it be not within the power of Loftis to specifically perform his contract, that petitioner have judgment for $3,000, with interest as damages. By the striking of the answers of the defendants and the direction of a verdict against them, the trial resulted in the plaintiff securing all the relief for which he prayed. It will be observed that the correctness of the court's ruling upon the answers of the defendants is challenged and questioned, but it will also be noted that neither defendant demurred to the petition. Two questions are raised by the record: Did the court err in striking the answers of the defendants? and Was it error, after having stricken the answers, to direct a verdict without any evidence in a case in which the petition of the plaintiff was not verified?
1. We shall first consider the answer of Loftis. The answer is indefinite and evasive. It admits the execution of the contract set forth in the petition, but asserts that the contract covered all the property embraced in the loan deed to the Phoenix Mutual Life Insurance Company, and states that at the time the trade was consummated and the deed executed to him the plaintiff insisted on eliminating from said deed 32.3 acres of land on the north side of the Columbus public road, included in the loan deed, and asserts that "defendant accepted said deed, but did not, in view of such omission from said deed, assume said loan of $7,700." The remainder of the answer admits that the Griffin Investment Company is claiming a balance of $3,000, and avers that the defendant is not under any obligation to pay this balance, "for the reasons above set out," that "he has fully complied with his contract," and he denies that the Griffin Investment Company is acting for him. The answer is verified by the affidavit of the defendant. We think it plain that this answer presented no defense to the petition, and was properly stricken upon demurrer. Having admitted the acceptance of the deed from which the 32.3 or 45 acres, the amount being immaterial under the facts of this case, were excepted, in which deed the plaintiff alleged was an assumption of the $7,700 indebtedness, the statement by the defendant that he did not assume said loan is an assertion directly contrary to the effect which the law gives to the acceptance of the deed.
The acceptance of the deed containing an assumption of the $7,700 loan bound the defendant for the payment thereof (Union City Realty & Trust Co. v. Wright, 138 Ga. 703, 76 S.E 35), and the question raised as to the terms of the contract of purchase and sale was immaterial to the...
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