Todd v. Fellows, 40018

• Decision Date: 15 May 1963
• Docket Number: No. 40018,No. 3,40018,3
• Parties: W. C. TODD v. C. L. FELLOWS et al
• Court: Georgia Court of Appeals

Page 577

131 S.E.2d 577

107 Ga.App. 783

W. C. TODD v. C. L. FELLOWS et al.

No. 40018.

Court of Appeals of Georgia, Division No. 3.

May 15, 1963.

A note in the principal amount of $3,000, with a bill of sale to secure debt as a part thereof, dated October 13, 1956, due October 13, 1962, signed by C. L. Fellows and payable to Tom T. Fellows, was, on March 1, 1957, transferred by Tom. T. Fellows to W. C. Todd, said transfer being as follows: 'For value received, and, to better secure my note, and one security deed with power of sale in the amount of $1,113.22 of this date, I hereby transfer to W. C. Todd all my rights, equities and values with the same power that is vested in to me to one bill of sale note from C. L. Fellows to me, as the interest of W. C. Todd may appear from time to time, being the within bill of sale note hereto written on the reverse side.' In June, 1961, W. C. Todd brought a statutory foreclosure proceeding alleging grounds of attachment in his affidavit of foreclosure, and C. L. Fellows filed his affidavit of illegality thereto setting up the following grounds: '1. That deponent is not indebted to the said W. C. Todd under said note and bill of sale to secure debt in the amount alleged in his affidavit of foreclosure nor in any other amount. 2. That deponent is not fraudulently disposing of said property as alleged in affidavit of foreclosure of the said W. C. Todd. 3. Deponent denies each and every allegation contained in the affidavit of foreclosure.'

Upon the trial the defendants (both C. L. Fellows and Tom T. Fellows are named defendants in error, but the record does not disclose how Tom T. Fellows became a party) admitted a prima facie case and assumed the burden of proof. W. C. Tood testified that the bill of sale note was transferred to him to secure other debts (than the one recited in the transfer) with Tom T. Fellows owed him at the time of the transfer and still owes him in the amount of $25,000 to $28,000. Tom T. Fellows denied that the transfer was given to secure any other debt than that recited in the transfer, and denied that he owed W. C. Todd anything. The evidence was uncontradicted that after the transfer and after the debt referred to in the transfer had been paid C. L. Fellows paid the entire amount of the transferred bill of sale note to Tom T. Fellows, part of which was represented by a cashier's check in the amount of $2,500 purchased by C. L. Fellows and paid on a debt of Tom T. Fellows to a whird party for which debt C. L. Fellows was guarantor. So far as the record discloses there were no demurrers or motions to strike the affidavit of illegality in whole or in part, nor were there any objections to any of the evidence except as disclosed in the headnotes. The jury returned a verdict for the defendants, the plaintiff's motion for new trial was overruled by the trial judge and is now before this court for review on exceptions thereto. The grounds of the motion for new trial, other than the general grounds, relate to alleged erroneous admission of testimony (as more fully appear in the headnotes), and to the charge of the court relating to the assumption of the burden of proof by defendant and the issue of whether the assignment of the bill of sale note was to secure only the indebtedness described in the transfer, which plaintiff admitted had been paid, or was to secure additional indebtedness owed by Tom T. Fellows to plaintiff.

McDonald, McDonald & Mills, J. C. McDonald, Fitzgerald, for plaintiff in error.

M. L. Preston, G. H. Mingledorff, Douglas, for defendants in error. Syllabus Opinion by the Court

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