Gunby v. Turner , 194 Ga. 378 ( 1942 )

1. It being manifest from the recitals in the bill of exceptions who is the plaintiff in error and who the defendant in error, the motion to dismiss on the ground that none is named or otherwise disclosed as such is without merit.

2. The petition as amended, stating in substance a cause of action in view of the provisions of the Code, § 53-503, was not subject to dismissal on general demurrer.

3. The date of the transaction under attack being July 9, 1932, and the suit having been filed May 28, 1941, it does not show such laches on the part of the complainant wife as will defeat a recovery, although the petition contains an averment that her husband died on January 1, 1935, "and that soon thereafter she learned that defendant herein had a security deed against her property," the action being commenced promptly after the holder attempted to enforce against her and property owned by her a security deed which she alleges had been given to secure her husband's debt.

4. The absence of an averment that she is the owner or in possession of land contained in a security deed which a wife alleges was given to secure her husband's debt is not ground to dismiss on general demurrer a suit brought to cancel such deed and to recover from the holder thereof a payment theretofore made by her on the debt secured thereby.

5. A demurrer to a petition can reach only what is alleged therein. It is a challenge not to the truthfulness of the allegations, but to their sufficiency.

No. 14206. JULY 15, 1942. REHEARING DENIED JULY 25, 1942. Mrs. Bess Bryan Gunby filed a petition against R. C. Turner, to obtain judgment for $1,000 paid by her by way of reducing a loan deed for $3,000 executed by her to defendant, and praying that said loan deed be canceled of record as a cloud on her title to said individual property, on the ground that the deed was obtained from her by the fraudulent scheme of her former husband and this defendant by his attorney, to bind her own personal property for the payment of her husband's debts; and that defendant be restrained and enjoined from selling her property so fraudulently pledged for the payment of those debts. She alleged as follows: Her husband's business was in the hands of a receiver appointed by a court. He stated to her that he could secure a loan of $3,000 if she would sign a release as to her interest in his business; and that unless same were signed, he would lose all his business, which was going to be sold to the highest bidder, and thus leave him penniless. Knowing that she had no personal interest in his business, and being greatly influenced by her husband's statement, she went with him to the office of the defendant's attorney and signed the paper binding her own property, not knowing that she was doing so, but believing that what she signed pertained only to her husband's business, as was represented to her by him. The attorney for the defendant knew, at the time she signed the security deed, that she had no interest whatever in her husband's business, and knew that she received no benefit or money by executing the security deed. She signed the deed without being informed by defendant's attorney of its contents. This attorney knew that she was merely trying to relieve her husband from any obligation he may owe her; that she did not intend to sign away her own individual property; and it was not explained to her that she was doing so. The signing of a security deed to her individual property was due to the fraudulent scheme of her then husband and the defendant's attorney, neither of whom informed her of the contents of the paper. By amendment she alleged, that after her husband died she then for the first time learned that soon after she signed said loan deed her deceased husband transferred said business to her in furtherance of the fraudulent scheme to bind her as surety for his pre-existing debts; that after her husband died she took charge of the electrical business as heir at law of her husband, being under the impression that the debt then claimed to be owing to defendant was the debt of deceased husband, and not her debt upon a paper signed by her binding her own individual property at the time of said signing; that when she sold a to of land and with the proceeds paid $1,000 to the defendant, she understood she was merely paying a debt owing by her deceased husband, and not a debt represented by a security deed on her own property; and that "she has paid interest at the rate of eight per centum since July 9, 1932." She prayed for judgment against the defendant for the $1,000 so paid, and for an accounting.

This petition was dismissed on general demurrer, and the plaintiff excepted. 1. The bill of exceptions is captioned:

"Georgia, Fulton County.

Bessie Bryan Gunby, Plaintiff in Error,

vs. Supreme Court of Georgia.

R. C. Turner, Defendant in Error."

In the bill of exceptions it is stated that the case of Bessie Bryan Gunby against R. C. Turner, etc. (describing the character of the case), came on to be heard, etc. The order excepted to is recited, followed by the words, "To this ruling the plaintiff in error then and there excepted." etc. The motion to dismiss the writ of error, on the ground that no one is named or otherwise disclosed either as plaintiff in error or defendant in error, is denied. Joiner v. Singletary, 106 Ga. 257 (32 S.E. 90).

2. The petition is in many respects indefinite in its allegations, but the exception is to a ruling sustaining not a special but a general demurrer. The heart of the petition, apparent on its face, is that the plaintiff, at the instance of her husband and with the knowledge of the defendant, executed a security deed on her separate property for the purpose of securing a loan to her husband of three thousand dollars; that from her own funds she paid to the defendant on said debt one thousand dollars, that the defendant is now advertising her property described in said security deed for sale under a power contained in that deed. She prays for judgment against him of one thousand dollars, that he be enjoined from selling her property, and that the security deed be canceled. This in substance stated a cause of action. Code, § 53-503; Strickland v. Vance,99 Ga. 531 (27 S.E. 152, 59 Am. St. R. 241); Bank of Eufaula v.Johnson, 146 Ga. 791 (92 S.E. 631). It is true that it is not disclosed when she paid the thousand dollars, nor in express terms is it declared who was the person from whom he wished to obtain the loan; but it is averred that defendant and her former husband induced her to sign the papers, and the copy of the security deed recites that it was given to secure a note of three thousand dollars made by her to the defendant; and it is averred, after reciting that the security deed was executed, that she did not owe the defendant any amount or secure any benefit therefrom. These imperfections in the framework of the petition did not render it subject to dismissal on general demurrer. "To be subject to general demurrer, a petition must be utterly lifeless." Medlock v. Aycock, 16 Ga. App. 813 (86 S.E. 455). Applying the Code, § 53-503, which makes illegal any contract by which a married woman binds her separate estate as surety for her husband, or any assumption of the debts of her husband, and which forbids any sale of her separate estate made to a creditor of her husband in extinguishment of his debts, it must be held that the petition stated a cause of action. It is immaterial what form the transaction takes. Magid v. Beaver,185 Ga. 669, 677 (196 S.E. 422), and cit.; Rhodes v. Gunn,34 Ga. App. 115 (128 S.E. 213).

3. The petition discloses that the date of the transaction was July 9, 1932; that her husband died on January 1, 1935; "and that soon thereafter she learned that defendant herein had a security deed against her property." The filing of the suit bears the date May 28, 1941. On this state of facts it is insisted by counsel for the defendant that the case is governed by the principle that "Equity gives no relief to one whose long delay renders the ascertainment of the truth difficult, though no legal limitation bars the right." Code § 37-119. We are referred to Bryan v.Tate, 138 Ga. 321 (75 S.E. 205), where it was held that the plaintiff's voluntary failure to bring suit for three years after before that time is such laches as will bar him of his action. The plaintiff's right of action does not depend on existence of actual fraud. If all her allegations as to fraudulent conduct were treated as surplusage, she would still be entitled to relief. If she had signed the security deed and the notes referred to therein voluntarily and with full knowledge, and without any semblance of fraud being practiced upon her, yet if what she alleges be established, the provisions of the Code referred to above would still be operative. Compare Rogers v.McClure, 128 Ga. 393 (2) (57 S.E. 692).

4. It is contended by defendant that Mrs. Gunby shows no title to the land, nor is it averred that she is in possession, and that the petition lacking such averments can not be sustained. This contention takes no account of that part of the suit where she seeks judgment for the thousand dollars and asks for other relief, or of the fact that she alleges in several different paragraphs that she placed this security deed on her own individual property, or of the fact that Turner recognizes her as the owner and seeks to sell the land as her property; or that it is not to be presumed that Turner, holding only a security deed, is himself in possession. The position likewise runs counter to the rule that one not in possession may nevertheless bring an action to cancel a deed if there be some other distinct head of equity jurisdiction sufficient to support the action. Page v.Brown, 192 Ga. 398 (15 S.E.2d 506), and cit. See also, as particularly in point, Gilmore v. Hunt, 137 Ga. 272 (73 S.E. 364); Jackson v. Reeves, 156 Ga. 802 (120 S.E. 541).

5. It is argued by the defendant that the dismissal on general demurrer of the action should be sustained, for that it is inequitable table and unconscionable for a court to grant to the plaintiff any relief when it appears that she gave her note and security as the purchase-price of a business of her late husband, which had been purchased at a receiver's sale by Turner, and that she took possession of the same, owns it to-day, and does not offer to restore. It is a sufficient answer to this that the premise for such a contention is not to be found in the petition as amended. The argument is in the nature of a speaking demurrer. It is not averred that Turner had purchased the business of the husband, or that he sold it to her in consideration of her promise to pay which was represented by her promissory note to secure which the security deed was executed. The amendment does state that after she signed these papers her husband transferred his business to her, but that this was unknown to her until his death; that she received no profits or benefits therefrom, and that after his death she established herself as owner as heir of her husband. The allegations taken as a whole do not state a case where the wife herself made an outright purchase for herself, and, in her own name and use of property once belonging to her husband, took possession of it, operated it, retained it, and when the creditor seeks to collect the money she obligated to pay him therefor tries to defeat a recovery while holding to the purchased property and enjoying the fruits thereof, on the ground that what she did was only to pledge her property to secure her husband's debt. No ruling is involved under this record on the sufficiency of that kind of a petition. If the facts were as urged in the defendant's brief, a different question would be presented. A demurrer is addressed to what is alleged.

Judgment reversed. All the Justices concur.