Wardlaw v. Woodruff

• Decision Date: 10 November 1933
• Docket Number: 9552.
• Citation: 173 S.E. 98,178 Ga. 240
• Parties: WARDLAW et al. v. WOODRUFF et al.
• Court: Georgia Supreme Court

173 S.E. 98

178 Ga. 240

WARDLAW et al. v. WOODRUFF et al.

No. 9552.

Supreme Court of Georgia

November 10, 1933

Rehearing Denied Feb. 24, 1934.

Syllabus by the Court.

1.As a general rule "judgments are conclusive between parties and their privies as to all matters put in issue, or which under the rules of law, might have been put in issue in the cause wherein the judgment was rendered."

2."Before a borrower who has executed a deed infected with usury can have affirmative relief, such as injunction to prevent exercise of the power of sale by the grantee in such security deed, he must pay or tender to the grantee the principal sum due."There was no payment and no valid continuing tender of the amount admitted to be due in the present case.

3.The court did not err in dismissing the petition on general demurrer.

Error from Superior Court, Muscogee County; C. F. McLaughlin Judge.

Petition by Albert F. Wardlaw and others, as executors of the last will and testament of W. E. Wardlaw, deceased, and others against George C. Woodruff and others.To review a judgment dismissing the case, plaintiffs bring error.

Affirmed.

RUSSELL C.J., dissenting.

Gilbert C. Robinson, of Montezuma, and Hatcher & Hatcher, of Columbus, for plaintiffs in error.

Foley & Chappell and Love & Fort, all of Columbus, for defendants in error.

HILL, Justice.

In 1915, W. E. Wardlaw borrowed from C. R. Johnson $6,000, and to secure the loan executed five notes for $1,200 each, maturing yearly over a period of five years, and secured the loan with a deed conveying 200 acres of land in Muscogee county.Through successive assignments the security deed and notes were held and owned by George C. Woodruff in 1926.Prior to the execution of the security deed, W. E. Wardlaw had a homestead set apart to him in the land described.Wardlaw died in 1922, and his widow, the sole surviving beneficiary under the homestead, died in 1916.Wardlaw paid one note for $1,200 in 1916, and since that date nothing has been paid on the debt.In November, 1931, George C. Woodruff proceeded to advertise the land for sale; whereupon Albert F. Wardlaw and others, as executors of the will of W. E. Wardlaw, deceased, and as to his heirs at law, filed a petition for injunction, cancellation of the security deed, etc.The court dismissed the petition on general demurrer.The plaintiffs sued out a writ of error to the Supreme Court, which affirmed the judgment.Wardlaw v. Woodruff,175 Ga. 515, 165 S.E. 557.In this case no supersedeas was granted, and in January, 1932, Woodruff sued out a dispossessory warrant against Albert F. Wardlaw, after having the land sold and bidding it in, Wardlaw, together with the same parties in the prior proceedings, then filed a petition in equity to enjoin the eviction of Wardlaw, for cancellation of the security deed, and for other relief.On demurrers to the petition the court passed an order reciting that there had been no valid tender of the money admitted by the plaintiffs to be due on the debt; that the plaintiffs were given until January 10, 1933, to tender or to pay into the registry of the court the amount admitted to be due; and that unless this was done by noon on the date named, the demurrer would be sustained and the petition dismissed.No further tender was made, and the court by final order dismissed the case.To this judgment, the plaintiffs excepted.

The petition sets up as grounds for cancellation of the security deed, a number of reasons urged in the former suit (175 Ga. 515, 165 S.E. 557, supra); and further, that, in the consummation of the original loan to W. E. Wardlaw, deceased, O. C. Bullock charged 10 per cent. of the amount of the loan as commission, and this infected the loan with usury which voided the title and the security deed; that the fact of this commission having been charged and paid was not known to plaintiffs at the time of the trial in the former suit, and could not have been ascertained by the exercise of diligence; that prior to the sale referred to the petitioners offered to pay to Woodruff $4,800 principal, plus 8 per cent. per annum simple interest, which he refused, and demanded the principal plus 8 per cent. per annum compounded annually, which petitioners refused to pay, for the alleged reason that the demand was violative of the interest provisions incorporated in the notes.By amendment it was alleged that "said tender was made on the 27th day of November, 1931, in open court and during the hearing of the interlocutory injunction of the former suit; *** that the actual money was not exhibited and physically presented to the said defendant, for the reason that the tender and offer were refused, and further tender was thereby waived."

In Wardlaw v. Woodruff,175 Ga. 515, 165 S.E. 557, supra, it was held that a contract to pay 8 per cent. interest per annum semiannually, with interest on the semiannual payments of interest due, does not constitute usury.In the present case it is further alleged, as showing that the transaction was infected with usury, that a commission of 10 per cent. on the principal sum of $6,000 was charged and paid.In the case tried on the first injunction proceeding the plea of usury was raised and passed on, and the ruling of the trial court thereon was affirmed by the Supreme Court.This ground of attack could and should have been made in the prior case.Civil Code(1910), § 5943;Haynes v. Armour Fertilizer Works,146 Ga. 832, 834, 92 S.E. 648, and cit.

The trial judge in his ruling on the demurrers in the present case, states: "It will be observed by reference to the amendment, *** that it is alleged by the petitioners that a tender was made in the former suit herein referred to in this order, and that the tender was refused.It is nowhere alleged in the present suit *** that a tender or an offer to pay the amount admitted to be due George C. Woodruff has been made since the alleged tender in the former suit; and the only reference to the tender was in a former suit which has been adjudicated by the decision hereinbefore referred to by the Supreme Court of Georgia."The court further allowed the plaintiffs time within which to pay into the registry of the court the amount admitted by the plaintiffs to be due; failing which the court made a final order dismissing the petition.In Barnett v. Terry,42 Ga. 283, 288, it was said: "When tender is set up in bar of an action pending, the Court may call on the party tendering to pay the money into Court.It is an admission of so much money due, and if the party relies on it as a plea to release him from interest, it is not error to call upon him to comply with his offer, for the plea sets up he is then and has always been ready to pay that sum admitted to be due.If he desires advantage from it he must be ready to perform when called on by the court."In Brantley v. Wood,97 Ga. 755, 759, 25 S.E. 499, 501, it was said: "We do not now decide whether the plaintiffs were, or were not, entitled to an injunction, under the evidence submitted.But, assuming that they were, the court very properly required, as a condition precedent to the granting of this relief, that they should first pay the principal and interest legally due on the debt secured by the mortgage.This requirement rests upon the time-honored maxim that 'he who seeks equity must do equity."'In this case on the former occasion it was held: "Before a borrower, who has executed a deed infected with usury, can have affirmative equitable relief, such as injunction to prevent exercise of the power of sale by the grantee in such security deed, he must pay or tender to the grantee the principal sum due."175 Ga. 515, 517, 165 S.E. 557, 560, supra, and cit.The judge did not err in dismissing the petition on demurrer.

Judgment affirmed.

All the Justices concur.

On Motion for Rehearing.

PER CURIAM.

The plaintiffs claimed to be entitled to certain equitable relief because of an exaction of usury alleged to have been discovered since the filing of a prior suit against the same defendant with respect to the same subject-matter, contending that they were ignorant of this matter at the time of filing the prior suit, and could not have discovered the facts by the exercise of ordinary diligence.The plaintiffs were not entitled to the equitable relief prayed for on the ground of usury which they claimed to have discovered since the first petition was filed, without paying or offering to pay the amount of principal together with lawful interest in accordance with the valid terms of the contract, unless the pleaded facts disclosed that a tender would have been useless in the circumstances.The petition alleged that the plaintiffs tendered a certain amount before the filing of the present suit, and that the tender was refused.It is clear from the allegations as amended, however, that the tender here referred to was made before the filing of the prior suit.The contention now made as to usury is based upon the alleged discovery that the original lender reserved the sum of $600 as a commission, which could only amount to usury.Since the plaintiffs now allege that they did not know of this circumstance until after judgment in the former litigation, and since the defendant is a transferee, it is a necessary inference that the tender made before the...