Calvert Mortgage Co. v. Flynt

Lumpkin, J.

(After stating the foregoing facts.) The petition alleged, that a deed to certain land was fraudulently procured from the plaintiff; that the grantee obtained a loan from a mortgage company, and made a deed to secure the debt; and that such deed was taken by the company “with full knowledge of petitioner’s rights.” Whether or not certain allegations in regard to notice arising from the grantor’s remaining on the land with the grantee, and from recitals of the consideration in the deed attacked, were subject to demurrer, need not be considered. This question was not distinctly raised by a demurrer to such allegations, though argued in the brief of counsel for plaintiff in error. In addition to them, there was the direct allegation of knowledge above quoted; and a general demurrer to the entire petition was properly overruled.

There was a demurrer to the paragraph of the petition which contained allegations on the subject of such notice, but the only point raised by the demurrer as to that paragraph was that the mortgage company was a non-resident corporation which could only act through its officers .and agents, and that the paragraph of the-petition mentioned should disclose what officer or agent of the company had the notice as charged. The allegation was of notice to the company, and this objection was not well taken, whether or not other objections might have been made.

Another ground of the demurrer was aimed at the allegation that the judgment of the city court of Dublin was void; but it was not argued or even mentioned in the brief of counsel for plaintiff in error, and the exception to the overruling of that ground will be treated as abandoned.

Judgment affirmed.

All the Justices concur.