Dotterer v. Freeman

Bleckley, Chief Justice. 1. The bill does not pray in express terms to set aside the deed from the sheriff to Roberts; nor would it be any cause to set aside this deed that by mistake on the part of Freeman, it conveyed the property to Roberts, the president of the bank which made the loan the deed was intended to secure, instead of directly to the bank as Freeman intended it should be made. The mistake was not mutual. The bank, as well as the president, — 495 — was satisfied with the deed as it was, and whether it was made to the one or the other, its effect as to Freeman was the same, its purpose being to secure the loan. Whenever the loan was repaid, the land would be as fully discharged under the conveyance to Roberts as it would if the conveyance had been made to the hank. Moreover, if a mistake on the part of Freeman was made in the original execution of the deed, he must have waived it more than once after he discovered it, for he several times renewed the note given for the loan, and each renewal note, as well as the original, described the deed as a deed made to Roberts. 2. The bill does not complain of usury in the loan or in any note given therefor except the last renewal note, and as to this it does not claim that the note is void, but on the contrary the plaintiff, Freeman, expressly recognizes in his bill that he is still liable thereon “for the principal and lawful interest.” The whole charge of the bill in relation to usury is as follows: “Tour orator further shows that said note still past due was usurious on its face; that said Roberts, the said bank and said Newby and said Dotterer, at the time of the pretended conveyance of said land, had notice that said note was infected with usury, and that neither said bank nor said Roberts got any title to said land, nor could it or Roberts convey a good title to the said Dotterer or said Newby; that said conveyance was made on March 8th, 1881, without the knowledge or consent of your orator, without taking the course provided by law in said cases, and without even compliance with the terms of said note, if it should be held that, infected with usury as it was, anything therein could authorize a sale of said land; that therefore said conveyance is absolutely void, that said Dotterer has no title to said land.” 'Obviously this charge relates to the last renewal note alone. If it means to attack the deed from the sheriff — 496 — to Roberts as void because of usury in the note, two answers may be made to it. The first is that the deed was coeval with the loan and with the first note given therefor, and if neither the loan nor this first note was tainted with usury — and it is not directly alleged that either was so tainted, — the deed was efficacious in passing title into Roberts for the security of the loan, and that title would not be divested by subsequent usury contracted for in the renewal note; certainly not unless the taint of usury not only rendered that note void but poisoned all the previous contracts for the payment of the loan. That the renewal note is not void so far as principal and lawful interest is concerned, is expressly recognized in the bill, as we have before stated. ' The second reason why usury in the renewal note would not affect the validity of the deed is, that the parties to the deed were the sheriff* and Roberts, and certainly there never was any usury as between them, of as between the sheriff* and the bank for whose security the deed to Roberts was executed. Even usury in the original loan from the bank to Freeman would not have prevented the title from passing into Roberts by the sheriff's deed. The title never was in Freeman. He sought to acquire it eventually by having it first pass into the bank, or into Roberts to secure the bank. If this deed be void, the formal legal title is yet in the defendant in execution, as whose property the sheriff sold the premises ; but the title did pass, and whether there was usury or not between Freeman and the bank, Freeman must repay the principal of the loan with lawful interest at least, as a condition precedent to any right legal or equitable to have a conveyance made to himself. The money embraced in the loan was purchase money. Pope v. Heartwell, 79 Ga. 482; Bugg v. Russell, 75 Ga. 837. It is proper to add that it is by no means certain that the charge above recited from the bill contemplates the — 497 — deed from the sheriff to Roberts as an object of attack for usury. It would seem to be directed more immediately to the deed from Roberts to Dotterer, but certainly the latter deed could not be vitiated by a usurious contract between the hank and Freeman. There is no charge that Dotterer paid usury or agreed to pay any, either to the bank or to Roberts. By purchasing the note he simply put himself in the bank’s shoes, and by taking á conveyance of the land from Roberts, he succeeded to all the rights which Roberts and the bank had in the land, if to no more. 3. The renewal note was on its face negotiable, and the bill charges that the bank, through its president, had sold it to the defendant, Dotterer, trustee for Mrs. Newby, and that he was the holder of it when the bill was filed. Thus Dotterer at that time was the holder of the note, and by the deed from Roberts to himself as trustee, was invested with the legal title to the land. The bill prays for a decree requiring the title to be conveyed to Freeman on payment of the sum due, for a decree cancelling the deed from Roberts to Dotterer as a cloud upon Freeman’s title, and for general relief. It alleges a tender made to the bank, offers to do. equity, and prays direction as to how much is due and whether the money should be paid to the hank or. to- Dotterer, offering to pay it to the one to whom it may be due. No reason is assigned why a tender was not made to Dotterer. There would seem to be no justification for calling him into court, when it was known that he had become the holder of the note, without first tendering payment of principal and lawful interest to him. Until such a tender, no equity to have the deed cancelled would be complete. Campbell v. Murray, 62 Ga. 87. The tender made to the bank was before this deed came into existence, and that tender was not made at the maturity of the note, but long afterwards. It is not alleged that — 498 — Dotterer holds as a mere agent for the bank, and nothing appears which would negative his ownership of the note as trustee for Mrs. Newby, or his right to receive the money both as against the bank and as against any rightful claim of Roberts to withhold it. Without intimating whether a tender hereafter made to Dotterer would suffice to put equity in the bill as against him, we are confident that the omission to make and allege a tender prior to the hearing which has been had left the bill deficient in a necessary element to obtain the relief sought. The offer to do equity, etc., is no substitute for making a tender which ought to have been made before the bill was filed. 4. An order was passed that the bill be taken pro confesso, and thereupon the facts charged in the bill were taken as confessed on the affidavit such as is prescribed in section 4208 of the code. The court, however, did not decree directly on this affidavit, but submitted the case to a jury, and aA^erdict was rendered finding, among other things, that the deed from Roberts to Dotterer be cancelled and that Dotterer convey to Freeman. The evidence on which this verdict was founded consisted alone of the charges of the bill and the affidavit above referred to. This being so, there Avas not enough proved to warrant the finding, and the court should have granted a new trial, the motion therefor being made in due time, because the verdict was contrary to law and without evidence to support it. The bill not shoAving on its face a state of facts requisite to the specific relief mentioned, there ought to be no decree for that relief, predicated either upon the verdict or directly on the order taking the bill pro confesso and the affidavit following up that order. This is sound on principle, and in harmony with the authorities. Thomson v. Wooster, 114 U. S. 104. At the hearing of this motion, certain facts vouched by matters of record in the same court strongly tending — 499 — to show that injustice had been done by the verdict, were brought to the attention of the presiding judge. Though these facts were not needed to render the right to a new trial complete, yet they could be looked to as a guide to discretion, and in their presence, we think it was manifest error to overrule the motion. Judgment reversed.