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Lawskills.com Georgia Caselaw
DECATUR LUMBER & SUPPLY CO. v. BAKER.
18318.
Cancellation. Before Judge Vaughn. DeKalb Superior Court. June 22, 1953.
HEAD, Justice.
W. E. Baker brought an action against Decatur Lumber & Supply Company, and alleged the following: The petitioner is the owner and in possession of a described tract of land. He acquired title to this property by deed from William M. Earnest on November 3, 1951. There appears of record a deed to secure debt from William M. Earnest to the defendant, dated October 9, 1951, conveying the same land, to secure a note for $1,000 with interest. On April 22, 1952, the petitioner and William M. Earnest tendered to an agent of the defendant $1,000 with interest due, which tender was refused. The petitioner has made a continuing offer of this sum at all times and tenders the sum into court. The prayer was that the deed to secure debt be canceled as a cloud upon the petitioner's title.
The defendant in its answer alleged that the petitioner purchased the property with notice that the loan deed was outstanding, that the deed stipulated that it was made to secure "a debt of $1,000.00 . . . or any other present or future indebtedness or liability of mine to second party," and that the grantor in the deed, William M. Earnest, was indebted to the defendant on open account in the sum of $10,203.12 at the thee the deed was executed, which is secured by the note and loan deed. By amendment the defendant alleged that $4,171.07 had been paid on the account of William M. Earnest, leaving a balance due of $6,032.05.
On the trial the petitioner stated that he knew that the loan deed was outstanding at the time he acquired his title to the property. He related the manner of the tender of the $1,000, with interest, to the defendant. William M. Earnest testified that he was indebted to the defendant in an amount of approximately $10,200 at the time the loan deed was executed. It was stipulated between the parties that at the time of the trial the indebtedness of William M. Earnest to the defendant was $6,032.05, and that the debt was $10,202.12 when the loan deed was executed.
The controlling questions in this case are whether the language in the deed to secure debt from William M. Earnest to the defendant, "or any other present or future indebtedness or liability of mine to second party," included the indebtedness on open account (later reduced to judgments) of Earnest to the defendant, and whether such language was so unambiguous as to preclude the introduction of oral testimony contradicting the terms of the deed as to the intention of the parties.
These questions have been fully decided by previous decisions of this court, construing similar language. The prior indebtedness of the grantor in the deed to secure debt was secured by the deed, and the fact that the deed recited that it was given to secure a debt of $1,000, evidenced by a described note, "or any other present or future indebtedness or liability" of the grantor to the grantee, did not make it ambiguous. Moultrie Banking Co. v. Mobley, 170 Ga. 402 (152 S. E. 903); Dudley v. Reconstruction Finance Corp., 188 Ga. 91 (2 S. E. 2d 907); Rose City Foods v. Bank of Thomas County, 207 Ga. 477 (62 S. E. 2d 145), and cases cited.
It was, therefore, erroneous for the trial judge to allow testimony, over the objections of the defendant, as to the intention of the parties, contrary to the terms of the deed, and to instruct the jury that they might find for the petitioner if they believed from the evidence that at the time of the execution of the deed the parties intended that the deed should secure $1,000 of the indebtedness due by the grantor in the deed to the defendant, and that the deed was not given for the purpose of securing any other present or future indebtedness of the grantor to the grantee.
The evidence wholly failed to support a verdict for the petitioner.
Walter E. Baker, Jr., contra.
W. E. Zachary, for plaintiff in error.
ARGUED SEPTEMBER 16, 1953 -- DECIDED OCTOBER 14, 1953 -- REHEARING DENIED NOVEMBER 12, 1953.
Saturday May 23 04:07 EDT


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