Strickland v. Bank
| Decision Date | 02 October 1913 |
| Citation | 79 S.E. 539,140 Ga. 653 |
| Parties | STRICKLAND et al. v. LOWRY NAT. BANK. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
1. Bills and Notes (§ 141*)—New Note — Collateral.
An owner of land sold it partly for cash and partly for credit, giving to the purchasers a bond for title and taking negotiable notes for the unpaid portion of the purchase money. The vendor for value indorsed one of these notes to a bank, and others to another person, and also executed a conveyance to each indorsee for an undivided interest in the property, in the ratio which the part of the debt transferred to such indorsee bore to the whole. Payments were made on the note indorsed to the bank. About three years after the maturity of the note, the bank took from the makers a new note, due five months after its date, for the balance claimed to be due on the original note, but bearing interest at an increased rate. It recited that it was given for value received, and that the makers "have pledged to the said bank, as collateral security, ' the original note and "security for the same." Held, that the second note was not a mere agreement collateral to the original note, extending the time for payment and increasing the rate of interest to be borne by it, but by its terms was a new note for the amount remaining due on the first note, bearing interest at the fixed rate, and the first note was to be held as collateral security for the second.
[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 338, 339, 350-354; Dec. Dig. § 141.*]
2. Pleading (§ 214*)—Demurrer—Effect as Admission.
While a demurrer admits facts well pleaded in the petition, where it was alleged by the plaintiff that the second note was collateral to the first, but the copies of the notes attached as exhibits showed on their face that this was not correct, but that the parties agreed that the first note should be held as collateral to the second, on demurrer the contract will be construed in accordance with its terms so appearing, and not in accordance with the interpretation alleged by the pleader.
[Ed. Note.—For other cases, see Pleading, Cent. Dig. §§ 525-534; Dec. Dig. § 214.*]
3. Bills and Notes (§ 141*) — Rights of Holder—New Note—Terms of Prior Note.
Under the facts stated in the first headnote, the bank could not, after the maturity of the second note, bring suit against the makers upon the first note, and, at the same time, supplement its terms by applying to it the increased rate of interest specified in the second note.
(a) It was accordingly error to overrule the demurrer in so far as it set up that the suit upon the first note could not be supplemented by importing into it the increased rate of interest agreed to be paid in the second note.
[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 338, 339, 350-354; Dec. Dig. § 141.*]
4. Bills and Notes (§ 471*) — Petition — Construction—Notice of Intent.
An allegation that the plaintiff had caused to be served upon the defendants a written notice of its intention "to bring this suit to this term of this court and to claim attorney's fees in accordance with the terms of said original note, " together with a prayer for the recovery of such attorney's fees, was sufficient tP show that the notice (based on section 4252 of the Civil Code of 1910) was a notice of intention to sue on the original note and seek to recover attorney's fees according to its terms, and not to recover such fees under the second note.
[Ed. Note.—For other cases, see Bills and Notes, Cent. Dig. §§ 1467-1470; Dec. Dig. § 471.*]
5. Vendor and Purchaser (§ 208*)—Mortgages (§§ 412, 427*)—Foreclosure — Vendor's Lien—Transferee.
Section 6037 of the Civil Code of 1910, which provides for the filing of a quitclaim deed and the sale of property under a judgment for purchase money, does not authorize a vendor of land who has taken several notes for the unpaidpurchase money thereof to transfer them to different persons and to convey to each of them an undivided interest in the property in proportion to the part of the unpaid purchase money so transferred to him, and thus empower such transferee to obtain judgment, file a deed, and sell such undivided interest in the manner pointed out by the statute (Civil Code 1910, § 6037), or to obtain a general judgment against the purchaser with a special lien upon the undivided interest in the land so conveyed.
(a) Where land is sold, bond for title given, and notes taken for an unpaid part of the purchase money, the title in the hands of the vendor as a whole stands as a security for the unpaid indebtedness. If the vendor could separate the title into fractional undivided interests and convey them to various transferees of different purchase-money notes, some of which might be paid in whole or in part, while others might remain entirely unpaid,...
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...counterclaim. Both the evidence and the pleadings preclude a recovery by the defendant on the counterclaim. See Strickland v. Lowry National Bank, 140 Ga. 653(2), 79 S.E. 539; Vandiver v. Endicott, 215 Ga. 250, 251, 109 S.E.2d 775; Scenic Heights Development Corp. v. Harry, 219 Ga. 253(1), ......
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Irwin v. Dailey, 21135
...in accord with the exhibits and the undeniable truth. Vandiver v. Endicott, 215 Ga. 250, 251, 109 S.E.2d 775; Strickland v. Lowry National Bank, 140 Ga. 653(2), 79 S.E. 539. In the Strickland case, supra, it is stated in headnote 2 that, 'where it was alleged by the plaintiff that the secon......
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...and not the allegations of the petition will control as to the contents and legal effect of the instrument. Strickland v. Lowry National Bank, 140 Ga. 653(2), 79 S.E. 539; Williams v. Appliances, Inc., 91 Ga.App. 608(4), 86 S.E.2d 632, 634; Hurt & Quinn, Inc. v. Keen, 89 Ga.App. 4, 6(2), 78......
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