Opinion
31488.
DECIDED FEBRUARY 6, 1947.
Complaint on notes; from Worth Superior Court — Judge Eve. October 15, 1946.
John T. Ferguson, for plaintiff.
Ford Houston, R. D. Smith, for defendants.
1. In an action on a series of promissory notes, where the defendants, before the introduction of any evidence, amended their answer to admit the execution and delivery of the notes sued on, and that the plaintiff was the legal holder thereof and had given them the required notice to bind them for the 10 percent attorney's fees provided in the notes, the court did not err in holding that the defendants were entitled to open and conclude the argument.
2. The evidence objected to in special ground 2 of the motion was not inadmissible for any reason assigned, and the court did not err in admitting the evidence or in overruling special ground 2 of the motion.
3. "The consideration of a deed may always be inquired into when the principles of justice require it."
( a) The statement in the deed here with reference to the consideration was a mere recital and did not prevent the consideration from being inquired into.
4. The verdict is supported by the evidence, no error of law appears, and the court did not err in overruling the motion for a new trial.
DECIDED FEBRUARY 6, 1947.
J. D. Taylor sued A. A. Ross and Mrs. Mabel Ross in the Superior Court of Worth County. His petition alleged, in substance, that the defendants were indebted to him for the balance due on a series of five promissory notes, dated December 27, 1929, and secured by a deed to secure debt to certain lands in Worth County. Judgment was sought for the principal, interest, and attorney's fees due on the notes, and for a special judgment against the land described in the deed to secure debt. The defendants' answer, as amended, admitted the execution and delivery of the notes sued on, that the plaintiff was the holder thereof, and that the notice of intention of bringing suit to bind them for the 10 percent attorney's fees provided in the notes had been duly given them; but they set up that the notes sued on had been fully satisfied and discharged, on November 9, 1934, by the execution and delivery to the plaintiff by Mrs. Mabel Ross of four promissory notes aggregating the principal sum of $2591.30 and four notes representing the interest thereon, and that the notes sued on were included in and formed a part of the consideration of $2591.30; that the plaintiff had agreed at the time to mark the notes sued on as "satisfied and canceled" and to surrender them to the plaintiffs, but had failed to do so.
On the trial, A. A. Ross testified substantially: That he had paid one of the notes sued on to a justice of the peace at Ty Ty, when the plaintiff sued it some years previously; that he had made other payments on said notes; and that the balance due on the notes was included in the notes given to the plaintiff by Mrs. Mabel Ross on November 9, 1934. He also testified as to how the indebtedness arose between the plaintiff and the defendants.
J. S. Taylor, the plaintiff, testified that none of the notes sued on had been settled, except to the extent shown by certain credits appearing thereon; and that the indebtedness represented by these notes was not embraced in the notes, given November 9, 1934, for $2591.30, which were secured by a deed to certain lands located in Tift County. His testimony as to the manner in which the indebtedness arose was in conflict with that of the defendant. He introduced in evidence the notes sued on and the deed securing them and also introduced in evidence the deed to secure the debt of $2591.30, which after describing a certain tract of land in Tift County, provided: "The indebtedness described below is for the purchase-price of the above-described property." There was other evidence which is not material to the issues involved on this appeal.
The jury returned a verdict in favor of the defendants. The plaintiff's motion for a new trial, which he amended, was overruled and the exception here is to that judgment.
1. The court held, over the objections of the plaintiff, that the defendants were entitled to open and conclude the argument. Before the introduction of any evidence, the defendants amended their answer and admitted the execution and delivery of the notes sued on, that the plaintiff was the holder of the same and that he had given them the notice of intention of bringing suit to bind them for attorney's fees, as alleged in the petition. Under this admission, the court did not err in holding that the defendants were entitled to open and conclude the argument. See Mobley v. Christian, 38 Ga. App. 655 ( 145 S.E. 103), and Montgomery v. Hunt, 93 Ga. 438 ( 21 S.E. 59). The trial judge did not err in overruling special ground 1 of the motion.
2. In special ground 2, error was assigned on the ruling of the court allowing the defendant, A. A. Ross, to testify that he had paid one of the notes sued on to a justice of the peace at Ty Ty when the plaintiff brought suit on it some years previously, over the objections of the plaintiff that the defendants contended that the note was merged into the $2591.30 note, and the evidence was different from that contention and varied from the pleadings, and therefore, was irrelevant. The defendants set out in their answer that the amount due on the notes sued on was included in and was part of the consideration making up the principal sum of $2591.30, and the issue before the jury was whether the amount due on the notes sued on, whatever this might be, was merged into the $2591.30 note. The evidence was not inadmissible for any reason assigned, and the court did not err in allowing the testimony or in overruling special ground 2 of the motion.
3. In special ground 3, error is assigned on the allowing in evidence of testimony to the effect that the notes sued on were merged into a subsequent series of notes, aggregating $2591.30, and secured by a deed to secure debt to certain lands in Tift County, over the objection that the deed to secure debt specifically provided that the indebtedness secured thereby was for the purchase-price of the land described therein, and the testimony offered tended to and did vary and alter the terms of the written instrument by contradicting and varying the consideration expressed therein. The general rule is that "the consideration of a deed may always be inquired into when the principles of justice require it." Code, § 29-101. It was held in Cottle v. Tomlinson, 192 Ga. 704, 712 ( 16 S.E.2d 555): "Where the consideration in a deed is expressed merely by way of recital, it is permissible to show by parol testimony that the true consideration is in fact different from that expressed in the instrument; but where the consideration is so expressed as to make it one of the terms and conditions of the deed, one of the parties thereto can not, under the guise of inquiring into its consideration, alter the terms of the instrument." The statement in question as to the consideration in the deed to secure debt was expressed merely by way of recital. Moreover, this was not an action on the deed to secure debt containing the provision with reference to its consideration, but the deed was only collaterally involved. In this connection, see Coldwell Co. v. Cowart, 138 Ga. 233 ( 75 S.E. 425). The court did not err in overruling special ground 3 of the motion.
4. The verdict is supported by the evidence, no error of law appears, and the judge did not err in overruling the motion for a new trial.
Judgment affirmed. Felton and Parker, JJ., concur.