Mccord v. Thompson

• Decision Date: 22 July 1908
• Citation: 131 Ga. 126,61 S.E. 1121
• Parties: McCORD. v. THOMPSON.
• Court: Georgia Supreme Court

131 Ga. 126

61 S.E. 1121

McCORD.

v.THOMPSON.

Supreme Court of Georgia.

July 22, 1908.

1. Cancellation of Instruments—Petition —Amendment.

The amendment to the plaintiff's petition, which was disallowed by the court, and which alleged that the note and mortgage sought to be canceled was given in full payment of her husband's debts, was not open to attack by demurrer upon the ground that it was confused and wanting in clearness and distinctness; nor was it demurrable on the ground that it set forth no sufficient cause of action, when it is considered in connection with the other allegations in the petition.

2. Same.

The court did not err in refusing to allow the amendment alleging that "the transfer of her estate was without the approval of the ordinary and void, " as the allegations of the amendment were immaterial.

3. Trial—Nonsuit—Authority to Grant.

There being some evidence from which the jury would have been authorized to find for the plaintiff, the court erred in granting a nonsuit.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 46, Trial, §§ 359-374.]

4. Wills—Instruments Constituting.

A promissory note in the usual form, and a mortgage upon realty containing a power of sale given to secure the payment of the note, cannot be construed to be an instrument testamentary in character, although it is stipulatedin the note that "this note becomes due at my [the maker's] death."

[Ed. Note.—For cases in point, see Cent. Dig. vol. 49, Wills, §§ 228-230.]

(Syllabus by the Court.)

Error from Superior Court, Clay County; W. C. Worrill, Judge.

Action by S. H. McCord against P. H. Thompson. Judgment for defendant, and plaintiff brings error. Reversed.

The petition of the plaintiff alleged, in substance: Her husband had died, and all his property had been set apart regularly by the ordinary to her as a year's support. About two years after her husband's death, the defendant, who was the physician attending him in his last illness, induced her to sign a certain note in his favor, representing the value of his medical services to her husband. At the time of signing this note she was incapacitated to contract, on account of excessive and continued use of morphine, which fact must have been known to the defendant. Several years later the defendant, with the aid of his attorney, likewise induced her to execute to him a so-called mortgage to the whole of her estate, fraudulently and falsely representing to her that unless she did so she would be evicted. The note, which was attached to the petition, was payable at her death, and the mortgage was to secure the payment of the note. In addition to charging that the note and the mortgage were void on account of fraud, the petitioner also averred that the instruments were testamentary in character, and void as a will, because not properly executed. The prayer was to cancel the note and mortgage as clouds upon her title. The defendant filed an answer, which amounted to a general denial. An amendment to the petition was then offered by the plaintiff, to the effect that the "purported note and mortgage was given for the payment of the debt of her husband, " and that "the transfer of her estate was without the approval of the ordinary, and so void." These amendments were demurred to specially by the defendant, "on the grounds that the same were not clear and distinct, but confused, " and that they "set out no sufficient cause of action." The demurrers were sustained, to which ruling the plaintiff excepted. Exception was also taken by the plaintiff to the refusal of the court, upon motion, to construe the so-called note and mortgage as "testamentary in character, and therefore void as a note and mortgage." On the trial the plaintiff testified that she executed the notes in payment of a debt of her husband and at the instance of the defendant; that at the time she executed the first note she "was in no condition to attend to any business whatever, " her "health being wrecked from excessive use of morphine"; and that she executed the second note and the mortgage under the fear of losing her property, caused by the threats and fraudulent representations of the defendant and his counsel, who were present at the time of the execution of the instruments. Upon this evidence the court, on motion of the defendant, granted a nonsuit, and the plaintiff excepted.

Ben. M. Turnipseed and Park & Collins, for plaintiff in error.

Rambo & Rambo, for defendant in error.

BECK, J. (after stating the facts as above). 1. To the petition as originally...