Morgan v. Cobb , 1912 Ga. LEXIS 79 ( 1912 )

Fish, C. J.

(After stating the facts.) In our opinion the court erred in refusing to strike the plea, which should be construed more strongly against the defendant. The averment in the plea that the plaintiff fraudulently induced the defendant to give him a bond for title to the twenty acres of land which she had purchased from Cook was not a sufficient allegation to constitute fraud practiced by the plaintiff upon the defendant. The averment in the plea was, that the plaintiff “informed this defendant that it would be necessary for her to sign a paper to get the money, and pretended to be in a great hurry and insisted that defendant sign said paper as quickly as possible, which she did, not knowing at the time the contents of same, she being unable at that time to read said paper; since which time this defendant has been advised and now believes that the paper to which her signature was thus obtained was a transfer, to the said W. S. Morgan, of .all her rights, title, and interest in and to her own land on which she then lived and for which she had paid in full.” There is no averment that the plaintiff misrepresented to the defendant the character or the contents of the paper which she was then requested to sign, or that the plaintiff knew that the defendant believed the paper to be one other than it really was. Even if for any reason the defendant could not then read the paper, it does not appear that she inquired of the plaintiff what the contents of the paper were.

It does not appear from the plea that, before the transaction about which the notes were given, the plaintiff had any interest whatever in the balance of the land purchased by Cook from Edwards. Under the allegations of the plea, the'title to such balance was either in Edwards, or, if he were dead, in his estate, or in Cook if a conveyance had been made to him by Edwards or his executor. The plea therefore fails to show that the plaintiff, Morgan, could execute a valid bond for title or conveyance covering the balance of the land to the defendant; and it not appearing that the plaintiff had any authority so to do, his failure to give the defendant a bond for title to the balance of the land, or to convey the. same to her, would not be a valid defense to the action on the notes.' It appears from the plea that the plaintiff loaned the defendant 'the sum of $346, for which she gave him the notes sued on, which loan, as the plea shows, went to the payment of the balance of the purchase-money for the whole 100 acres of land which Cook had .purchased from Edwards, and thepe is no reason set up in the plea why the plaintiff, who was the lender of the money to the defendant, should have given her security, or an obligation to repay the same to her. Indeed there is nothing in the plea indicating that the $346 was to be repaid to the defendant by the plaintiff, or by Cook, or any one else; but it does appear that she was paying it for Cook’s accommodation, though he was no party to the contract between the plaintiff and defendant.

As the plea should have been stricken, the subsequent trial on the issue sought to be made by the plea was nugatory, and it is therefore unnecessary to pass upon the grounds of the motion for a new trial.

Judgment reversed.

All the Justices concur, except Sill, J., not presiding.