Matthews v. Banks , 146 Ga. 732 ( 1917 )

Beck, J.

(After stating the foregoing facts.)

1. Construing the language used by the' petitioner most strongly against him, he seeks to have canceled and set aside certain written instruments executed by his intestate to secure a debt a part of which was infected with usury. This relief a court of equity will not grant upon such petition, there being no offer to pay that part of the debt which was not usurious. The plaintiff can not keep the money which the defendant actually loaned, and have canceled the papers intended as evidence of and security for the debt, without repayment of the principal and lawful interest. Campbell v. Murray, 63 Ga. 86; Beach v. Lattner, 101 Ga. 357 (28 S. E. 110). So far as the petition sought for a cancellation of the deed given-to Banks to secure the payment of the $500 loaned, it is demurrable; and upon the same principles of equity, the portion of the petition seeking to have canceled the transfer of the bond for title is also demurrable; aud the court properly sustained the demurrer so far as the same relates to the parts of the petition just specified.

2. But the petition as amended goes further. It alleges, that Hand, one of the defendants, had obtained a written order from the plaintiff’s intestate, directing Banks to execute a deed to Hand upon Hand’s payment of the debt; that certain debts which Hand claimed to have paid for the intestate did not exist; that the order to Banks was obtained by Hand when the intestate was old, imbecile, and illiterate, when his memory was entirely gone and he could not understand the nature of a contract; that the order was without consideration; that Hand was now forcibly seizing a part of the crops upon the lands referred to, and was about to seize the remainder, without any right to do so; and that he was violently interfering with the tenants upon the land. Reference to other parts of the pleadings and the petition shows that Hand may have taken jDossession of the crops under the authority conferred upon him b)’ an order of court appointing him receiver in the case; but in passing upon the exception to the judgment sustaining the demurrer, we can not look beyond the petition and the demurrer. With the positive allegation in the petition that Hand’s deed from Banks was obtained upon an order which the grantee in that deed had obtained by'imposition upon an old and illiterate imbecile, the entire case should not have been dismissed upon general demurrer. Apparently the court did not pass upon the special demurrer, but dismissed the entire case upon the general demurrer. Consequently the questions raised by the special demurrer are not dealt with here, as they do not seem to have been considered by the court below.

Judgment reversed.

All the Justices concur.