Baker v. Tillman , 84 Ga. 401 ( 1890 )

Bleckley, Chief Justice.

From the plaintiff’s evidence, together with the admission made by his counsel, it appeared that the mortgage referred to in the conditional contract sued upon was outstanding when the action was brought, and was not paid oft or taken up and cancelled until the day on which the case was tried. The condition on which the maturity of the contract depended was not, as in the case of Griswold v. Scott, 13 Ga. 210, suspended upon an act to be done by the debtor, but upon one to be done by the creditor. This rendered the act a condition precedent, and the declaration so treats it; for it alleges that the mortgage “ has been taken up and paid, and is no longer a lien on said land.” 'Whether an action could have been brought for a part of the debt evidenced by the contract, without alleging performance of the condition, need not be considered. No such action was brought. Performance of the condition was alleged, and the proof was that it was not performed. When the suit was brought, the defendant was not in default. He had not violated his promise to pay, because he had not promised to pay at the time stipulated except upon condition that the mortgage lien should be removed by that time. Why should a debtor who is in no default be subjected to suit? Why should he be required to incur the expense of defending an action brought before the cause of action declared upon had arisen ? That a cause of action accrues pending the suit will not entitle the plaintiff to recover. Wadley v. Jones, 55 Ga. 329. Here the plaintiff not only failed to sustain a material part of his declaration by proof, but showed affirmatively that his declaration was untrue. The plea of the general issue was all that was essential to resist the case made. Indeed, had no plea at all been filed, the motion for a nonsuit should have been granted. The court erred in not grantingit, and we direct that a judgment of nonsuit be entered. Judgment reversed.