McKaig v. Hardy , 196 Ga. 582 ( 1943 )

In Threlkeld v. Dobbins,45 Ga. 144, 146, it was said: "It is the duty of a defendant to state his case, and the court will not strain a point to make it out for him. We take it for granted he has gone as far in his statement as his conscience will let him; and so treating his plea, we think the court was right in striking it." The foregoing is but an application of the recognized rule that pleadings are to be construed most strongly against the pleader. In Doyal v.Russell, 183 Ga. 518 (3, 4), 534 (189 S.E. 32), it was held that where pleadings are ambiguous or couched in alternative expressions, on demurrer they will be given that construction which is most unfavorable to the pleader. The pleading there referred to alleged that the defendant would illegally pay out funds under a proclamation or otherwise in violation of law, unless restrained. In the opinion, in discussing this alternative allegation, it was said: "Where any one of several averments alleged in the alternative is insufficient, the entire pleading is rendered bad. In other words, where two matters are pleaded in the disjunctive, one of which is good and the other not, the petition is treated as pleading no more than the latter, because it must be construed most strongly against the pleader." The cases there cited amply support the quoted ruling. In Ellis v.Lockett, 100 Ga. 719 (28 S.E. 452), the suit was by the vendor for the purchase-money of land. The defendant attempted to set up as a defense by special plea that the vendor's title was bad; and it was said, that as "the pleas in question did not by their allegations affirmatively show such want of title, there was no error in striking them on demurrer." I think the foregoing decisions, which are in harmony with countless other decisions of this court, make it clear that a defendant's plea, when construed on demurrer, can never legally be construed more favorably to the defendant than its language expresses. I think it means also that facts more favorable to the defendant's case than those pleaded do not exist; otherwise in the interest of his case the defendant would have alleged them.

Division 1 of the majority opinion reverses the judgment which sustained the plaintiff's demurrer to paragraph 5 of the amended plea. This paragraph details circumstances which might be sufficient in law to relieve the defendant from any act committed by him while in the condition there described; but the defendant was unwilling to allege that he executed the deed here involved while in that condition. The deed is dated September 25. Paragraph 5 of the plea alleges that on or about September 25 the transactions there recited took place. Under the ruling inDoyal v. Russell, supra, this alternative allegation must be construed to mean, not that on September 25, but about September 25, such matters transpired. In the nearest approach to an allegation that the deed was executed in the circumstances there recited it is alleged that "during this time he may have signed such deed." This statement, under the rule, means no more than that the defendant may have but did not sign the deed during the time there referred to; and hence paragraph 5 constituted no defense and no valid attack upon the deed in question, and it was properly stricken on demurrer. Since the entire case turned upon the validity of that deed, and since the defendant does not deny the execution of the deed, it was not error for the court to direct the verdict in favor of the plaintiff.

Of course, the plea of the defendant recites a number of facts which strongly indicate that he held possession of the premises in good faith, and the plea asserts that he did not know of the existence of the deed until this suit was brought; but these circumstances and this assertion were conclusively answered by the existence of the deed, properly executed and signed by the defendant, in the absence of a showing that the deed was for some legal reason invalid.