Nixon v. Brown, 24198

• Decision Date: 07 September 1967
• Docket Number: No. 24198,24198
• Citation: 223 Ga. 579,157 S.E.2d 20
• Parties: John P. NIXON v. Mae F. BROWN.
• Court: Georgia Supreme Court

Page 20

157 S.E.2d 20

223 Ga. 579

John P. NIXON v. Mae F. BROWN.

No. 24198.

Supreme Court of Georgia.

Sept. 7, 1967.

Rehearing Denied Sept. 21, 1967.

Syllabus by the Court

1. Appellee's amendments were properly allowed over objection.

2. The petition sufficiently set forth a cause of action for cancellation.

3. Appellee's allegations were adequate to show a valid tender.

4. The court properly overruled the special demurrers to the petition as amended.

5. A security deed holder from the grantee on described land is not a necessary party to an action by the grantor against the grantee to cancel the warranty deed conveying the said land in that the grantor is not seeking to cancel the security deed.

6. Appellant's motion for summary judgment was properly denied.

Spencer & Pace, Stephen Pace, Jr., R. T. Spencer, Warner Robins, for appellant.

Joel A. Willis, Jr., Warner Robins, Earl Staples, W. H. Stanford, Jr., Carrollton, for appellee.

ALMAND, Presiding Justice.

Mae F. Brown, appellee, brought an action against John P. Nixon, appellant, seeking cancellation of a warranty deed which she had executed to him. In her original petition appellee alleged in substance: that the appellant, an attorney, approached her about purchasing from her a certain described 567 acre tract of land; that appellant assured appellee there was no need for her to hire an attorney to represent her in that he would represent her interests as well as his own without a legal fee; that as her attorney appellant owed appellee a duty to protect her interests; that as part of the negotiations of the said land, appellant orally agreed to pay appellee $11,080 as a 20% discount due appellee on a second security deed on the land if paid before a designated date; that appellant orally agreed to pay off this second security deed before the designated date and assured appellee that he had sufficient money on account in a stated bank to pay the balance due on this second security deed; that appellee executed a warranty deed to the appellant conveying all of her interests and title in the said land; that appellee relied upon appellant's statements that he would pay off the second security deed before the designated date and give the $11,080 discount to her; that appellant has refused to pay the balance due on the second security deed and the designated date when the amount was due has passed; that appellant has refused to pay appellee the $11,080 discount money; that appellee is a housewife who is inexperienced in the value and sale of real estate; that appellee delivered to appellant the warranty deed to the said land, which he prepared, before he had paid her any consideration therefor 'not knowing that the defendant (appellant) had no intention in the beginning of paying her the $11,080, discount money on the second security deed, as part of the consideration of the sale'; that appellee has tendered back to appellant all that she has received from him in regard to the sale of said land and that appellant has refused to accept the tender.

Appellant filed demurrers, general and special, and an answer to the appellee's petition. Subsequently, appellee amended her petition and further alleged: that appellant assured her that the mutual benefits flowing to each of them out of the transaction would adequately compensate him for representing her; that appellant, as part of the consideration, conveyed to appellee certain Lake Joy property, but before making the conveyance he guaranteed appellee he would obtain a $15,000 loan in his own name securing the loan with the Lake Joy property and pay off a $5,600 indebtedness against the Lake Joy property; that appellant would give appellee the balance of the $15,000 after the $5,600 indebtedness was paid; that appellee has received a deed to the Lake Joy Property, but appellant has refused to obtain the loan to pay off the $5,600 indebtedness or to convey to appellee the remaining funds; that appellant had admitted to the attorney for the holder of the second security deed on the 567 acre tract of land that 'he had no intention in the beginning to pay off the second security deed'; that at the outset of this sale the appellant had no intention to pay appellee the $11,080 discount money or to obtain a new loan on the Lake Joy property; and that appellee tendered to appellant the cash she received, the Lake Joy property, a reassumption of all the obligations which appellant had not paid against the conveyed tract of land and to refund to appellant all moneys he had spent to pay off liens, mortgages and judgments on said land.

The appellant objected to these amendments and filed renewed and additional demurrers, general and special, to the amended petition. The court overruled appellant's objections to the appellee's amendments and overruled appellant's demurrers to the appellee's amended petition. Thereafter, appellant made a motion for summary judgment which was denied.

Appellant assigns error on the overruling of his objections to the appellee's amendments, to the overruling of his general and special demurrers and to the denial of his motion for summary judgment.

1. Appellant contends there was nothing in the original petition to amend by and the amendments set forth a new and distinct cause of action. Both of these contentions are without merit. Clearly the original petition goes far beyond the minimal standards in showing a plaintiff and a defendant and setting out sufficient to indicate and specify some particular fact or transaction as a cause of action. Code § 81-1302. Further, the amendments served only to amplify or extend the cause of action and in no respect sought to set forth a new cause of action. The appellee's amendments were properly allowed over the...