Moore v. Turner

• Decision Date: 18 November 1916
• Docket Number: 126.
• Citation: 91 S.E. 13,146 Ga. 197
• Parties: MOORE v. TURNER ET AL.
• Court: Georgia Supreme Court

91 S.E. 13

146 Ga. 197

MOORE v. TURNER ET AL.

No. 126.

Supreme Court of Georgia

November 18, 1916

Syllabus by the Court.

M owned land in Atlanta, which was incumbered by specified liens in favor of various persons. T. and P. owned farm lands in Wilkes county, which were unincumbered. There was a contract for exchange of the lands, on the basis that for the city lands, subject to the incumbrances, T. and P. should convey the farm lands and pay a difference, some in cash and the balance in deferred payments to be secured by incumbrance on the lands. In pursuance of the contract deeds were exchanged and possession delivered by the parties respectively. T. and P. made the cash payment, gave notes for the deferred payments, and executed a security deed on the property, receiving from M. his bond to reconvey. The bond contained the following recitals: "The obligor herein further agrees and covenants that he will cancel the loan deed upon which this bond for title is based, upon receiving from the obligees herein, or their assigns, at any time during the existence of his present loan deed, of a new loan deed covering all the above-described property, and which shall be a first lien thereon, excepting a mortgage or loan deed of fifteen thousand ($15,000.00) dollars, which this obligor agrees may be placed upon said premises in lieu of the present existing prior indebtedness to which his present loan deed is subject by its terms." Subsequently T. and P. negotiated for loans on the land at 8 per cent. per annum for five years, aggregating the amount specified in the bond with which to discharge the prior liens, and, to the end that the loans might be made, called upon M. to cancel his security deed in terms of his bond and accept a new security deed, subject only to the security of the loans above mentioned. M. declined, without stating any reason, to cancel his security deed and accept the substitute therefor. T. and P. immediately offered to rescind the contract, which offer was refused. As a result T. and P. were unable to obtain the loans. The holders of the prior liens foreclosed them and caused the property to be levied upon and sold, so that T and P. lost it. Subsequently T. and P. instituted an euqitable action against M., alleging all that is stated above, and further, in substance, as follows: The conduct of M. in refusing to cancel his security deed was with the fraudulent intent to put it out of the...