Robertson v. Panlos
| Citation | 65 S.E.2d 400,208 Ga. 116 |
| Decision Date | 15 May 1951 |
| Docket Number | No. 17449,17449 |
| Parties | ROBERTSON v. PANLOS et al. |
| Court | Supreme Court of Georgia |
Syllabus by the Court.
The petition in this case, as amended, does not state a cause of action for equitable relief against the defendants who interposed demurrers.
Mrs. Teres Robertson brought an equitable petition against George C. Panlos, Hugh N. Echols, and Mrs. Ida Mae Echols. The defendants, Hugh N. Echols and Mrs. Ida Mae Echols, filed general and special demurrers to the petition, and the trial court sustained the ground of general demurrer contending that the petition, as amended, did not set forth a cause of action against them. The case comes to this on an exception to that judgment. The petition seeks relief against Panlos, individually as to several transactions, but there is no judgment of the trial court in connection with these portions of the petition.
The petition, as amended, as a basis of the relief sought against the defendants, Hugh N. Echols and Mrs. Ida Mae Echols, alleged in substance as follows: The plaintiff is a Hungarian and is unable to read English. The defendant Panlos and his wife formerly lived in two rooms in the plaintiff's house at 127 Clarke St., S. W., in Atlanta. The defendant Panlos, in talking to the plaintiff about buying some property on Marietta Road, told her that, if she would furnish $800, which with his $200 would make $1000 as the down payment on the property, he would pay the monthly payments and take care of everthing else to be paid about the place, and that he would repay her the $800. In the month of January, 1950, the defendant Panlos sent for the plaintiff to come to his restaurant in the City of Atlanta, and when she arrived there Panlos stated to her that 'these are the agents to see about selling the place,' referring to them as Hilley and H. B. Schumpert, and that they had the papers to sign. 'Several papers were put before her to sign by said H. B. Schumpert, which she was unable to read as she can not read English and did not read such papers nor were the same read to her before she sighed the same in said restaurant, and she was not given any of said papers then signed; that said H. B. Schumpert was then and there the agent of and acting for said defendants, Hugh N. Echols and Mrs. Ida Mae Echols, and that, in placing before the plaintiff and telling her to sign the purported sales contract hereinafter referred to without reading to her or causing the same to be read to her or making known the contents to her, the signature of plaintiff thereto was by said Schumpert fraudulently procured; that said trick, artifice, and collusive scheme by said Schumpert and defendant Panlos, who conspired to defraud plaintiff by procuring her signature to said purported sales contract, was calculated to deceive and mislead, and did deceive and mislead, plaintiff into her signing the said purported sales contract; that she was not told and did not know at the time of signing of any provision being in the papers signed relative to her Clarke Street home.' It was only when her attorney procured a copy of the paper signed by her that she became aware that the contract of sale contained the following provision: 'Upon the sale of No. 127 Clarke St., S. W., by the purchaser, one-half of the proceeds from said sale to be applied to reducing the loan covering No. 1968 Marietta Road, N. W.' On or about January 31, 1950, Panlos had the plaintiff bring the $800 to him, saying that he would put it in the bank and draw a check for the amount. The next day, February 1, 1951, he had the plaintiff come to his restaurant and go with him to the real estate agent's office. There she was told to sign several papers, none of which were read to her, and she did not know the contents of the papers, being unable to read English. At the time of signing the papers on February 1, 1950, which she was told by the agent of Hugh N. Echols and Mrs. Ida Mae Echols to sign, the plaintiff did not know that she was signing a deed to secure debt which obligated her to pay $6500, nor that a deed was being made to her and Panlos. There appears of record in the office of the clerk of the Superior Court of Fulton County a deed dated February 1, 1950, wherein Hugh N. Echols and Mrs. Ida Mae Echols are named as grantors, and the plaintiff and Panlos are named as grantees, a copy or which is attached to the petition as an exhibit. There also appears of record a deed to secure debt dated February 1, 1950, wherein the grantors are the plaintiffs and Panlos, and the grantee is Mrs. Ida Mae Echols, which recites that it is made to secure an indebtedness of $6500.
The prayers of the original petition seeking relief against the defendants, Hugh N. Echols and Mrs. Ida Mae Echols, were: that the contract of sale be set aside and declared to be null and void; that the defendants, Hugh N. Echols and Mrs. Ida Mae Echols, be required to surrender and deliver up for cancellation the copy of the contract of sale held by one or both of them; and that they be enjoined and restrained from taking any steps or instituting any legal action in connection with the contract of sale. By amendment it was prayed: that the defendants, Hugh N. Echols and Mrs. Ida Mae Echols, be required to surrender and deliver up the deed to secure debt made by the plaintiff and Panlos to them; that Panlos be required to surrender and deliver up the warranty deed made by Hugh N. Echols and Mrs. Ida Mae Echols to the plaintiff and Panlos; and that the plaintiff have judgment for $800 against the defendants, Hugh N. Echols and Mrs. Ida Mae Echols, being the amount delivered by the plaintiff to Panlos, and by Panlos paid to the Echols.
Norman I. Miller, Atlanta, for plaintiff in error.
Bertram S. Boley, Paul Webb, Jr. and Harold Sheats, all of Atlanta, for defendants in error.
'While a demurrer admits facts properly pleaded, it does not admit a fraud charged, except as the facts establish or constitute fraud.' Miller v. Butler, 121 Ga. 758(3), 49 S.E. 754; Tolbert v. Caledonian Ins. Co., 101 Ga. 741, 746, 28 S.E. 991; Jones v. Robinson, 172 Ga. 746, 747 (3-c), 158 S.E. 752. A general allegation of fraud is insufficient. The complainant must show where...
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