Brown v. Bonds

Evans, J. (After stating the facts.) The granting of the injunction was resisted by demurrer to the petition and by answer. Under the facts alleged in the petition, petitioner was entitled to have the writings executed by her to the defendant, Mrs. Brown, surrendered up and canceled. Bell v. Weyman, 99 Ga. 273. The gravamen of the petition is the cancellation of a deed alleged to have been given as security for a debt, after tender of the debt with legal interest and the refusal of the creditor to accept the same; and also the cancellation of a paper termed “release,” alleged to have been procured by a fraudulent representation of its contents and without consideration. As defendant in the rent and supply-lien foreclosure suits, petitioner could only set up such equitable defense as would be germane to that which she might allege by way of counter-affidavit; she could not engraft on her statutory defense an amendment praying a cancellation of her deed to the plaintiff. Patrick v. Cobb, 122 Ga. 80. Nor is the ease made by the petition at all similar to that of Johnson v. Thrower, 117 Ga. 1009. In that case the petition was filed by one who had attorned to the defendant as landlord, to enjoin the execution of a dispossessory warrant, and no relief other than injunction was prayed. The applicant there was denied an injunction to prevent the enforcement of the dispossessory warrant, because all of the matters alleged were available as a defense to the statutory proceeding. The same may also be said of Hays v. Clay, 121 Ga. 908. In the case in hand, the petition denies the relation of landlord and tenant, and prays the cancellation of certain writings, for good and sufficient reasons alleged, and, as incidental to this relief, prays that the distress warrant and landlord’s supply lien be stayed until the final decree, when the respective rights of the parties will have been determined. The petition sets forth good cause for equitable interference by cancelling these writings; and “when the court of equity takes jurisdiction for one purpose, it holds it for all others necessary to the final settlement of all questions involved in the litigation between the parties growing out of and connected with that [837] subject-matter.” Clay v. Banks, 71 Ga. 374. Necessarily involved in tbe litigation over the title is the right to collect rent and the demand for supplies by lien foreclosure, as was done in this case. If defendant’s title was only security for a debt, she would only be entitled to her debt with legal interest. On the other hand, if defendant purchased the land from the plaintiff, who thereafter remained on the land as tenant, the deed would be absolute, and she would be entitled to proceed with her liens for rent and supplies. As to the nature of the deed made by plaintiff to defendant, whether it was taken as security for a debt, or, together with a cotemporane■ous writing, evidenced a sale with option to repurchase, the evidence was in hopeless conflict. The judge took the view of the plaintiff, and we can not say that he abused his discretion. But it is contended that the result of the litigation in the justice’s court concluded the plaintiff. .The record of the proceedings in the justice’s court discloses that an issue had been formed in that court between the plaintiff and the defendant by the filing of a counter-affidavit to the distress warrant, and on the hearing before the magistrate judgment was rendered against the defendant, Lou Bonds. She took an appeal to a jury in the justice’s court and was again unsuccessful. But, so far as the record discloses, no judgment was ever entered on the verdict obtained in that court. Had this been done, the judgment would be conclusive upon the parties as to all issues involved in that controversy, and the further prosecution of the liens would not be enjoined. But a verdict not followed by adjudgment will not serve as an estoppel by res adjudicata. Walden v. Walden, 124 Ga. 145. There being no estoppel by judgment, the court properly considered the enforcement of the liens as in fieri, and enjoined their further prosecution until the equitable petition was disposed of on its merits. 2. Another contention of the plaintiff in error is that the evidence adduced on the hearing did not warrant a finding that she in any way misled Lou Bonds into the belief that the “release” sought to be set aside on the ground of fraud was merely an instrument .granting further indulgence. ■ It is true‘that Lou Bonds, whose testimony was submitted by affidavit, swore only in general terms that she was “an ignorant negro woman, without education,” and signed the paper without any knowledge of its contents, relying on Mrs. Brown’s false representations as to its character. The paper [838] purported to have been attested by two witnesses, one of whom, a justice of the peace, testified that at the request of Mrs. Brown he “read over and explained to Lou Bonds the paper dated October 15th, 1904,” wherein the plaintiff released all claim to the premises in dispute, and that “no effort was made by Mrs. Brown in his presence to deceive or take advantage of Lou Bonds.” This testimony was not met by any denial on the part of the plaintiff that the paper was read over and explained to her by the justice of the peace, and the fact was brought out on the hearing that the plaintiff was at least able to write her own name, though she had testified she was without any education. Under this showing, it is a matter of some doubt whether the plaintiff offered sufficient legal excuse for not knowing the contents of the paper which she sought to cancel on the ground of fraud. But be this as it may, we are of the opinion that it was .not essential that she should sustain her allegations of fraud in the procurement of that writing. The original transaction between the parties was evidenced by two writings: (1) a conveyance from Lou Bonds to Mrs. Brown, purporting to be an unconditional deed of bargain and sale with a warranty of title, .and (2) an agreement, cotemporaneously executed, which recited the execution of such a deed because Mrs. Brown had “taken up” certain notes and claims which Lou Bonds owed to different parties, aggregating in amount, principal and interest, the sum of $450. The stipulations set forth in this agreement were as follows: “Now should the said Lou Bonds pay the said sum of money and the interest mentioned above on or by October 15th, 1904, then the said Mrs. C. Gi Brown shall and will make a quitclaim deed to the above-described property back to the said Lou Bonds. It is further agreed on the part of the said Lou Bonds that in case she fails to pay the money above mentioned on or by the 15th day of October,. 1904, she hereby agrees that this contract shall be void and the deed this day made by me to Mrs. O. G. Brown shall become an absolute title to the said Mrs. C. G. Brown.” If this instrument, which was signed by both parties, correctly sets forth the agreement between them, then the two .writings evidence a sale and conveyance of the land, with an option to the vendor to repurchase it within a designated period. Felton v. Grier, 109 Ga. 320. No mention is made' of a loan. However, if a loan was in point of fact made, and these writings merely furnish the cloak for a usurious transaction, then [839] the truth may be shown by parol and the writings canceled on payment of the debt with legal interest thereon. Ibid. Treating the agreement as speaking the truth, Mrs. Brown became vested with the absolute title upon the expiration of the option, and there was no occasion for her to get any “release” from Lou Bonds. The paper so termed in the pleadings was'dated October 15, 1904, was signed by Lou Bonds in the presence of witnesses, and was in the following language: “Georgia, Baker County. For and in consideration of my inability to meet certain claims, mortgages, fi. fas., &c., taken up and paid for me by Mrs. C. G. Brown, and my having given her a deed to my lands in the seventh district of Baker County, Georgia, to secure her' in the payment of these claims, I hereby transfer Mrs. E. C. Brown my entire claim, without any recourse to be taken by me or my heirs.” The instrument does not recite any consideration moving from Mrs. Brown, nor any reason for its execution save the inability of Lou Bonds to meet certain indebtedness which had been discharged by Mrs. Brown. The latter does not, under, its terms, relinquish any claim for reimbursement; it does not purport to be an accord and satisfaction, whereby Mrs. Brown was to take the land in payment of any demand against the maker. On its- face it purports to be nothing more than a gratuitous relinquishment of an equity of redemption by Lou Bonds respecting lands deeded to Mrs. Brown “to secure her in the payment” of certain claims which Lou Bonds had been unable to meet. This anomalous writing did not, apparently, in any way affect the pre-existing rights of the respective parties to the original agreement, whatever it was, considered as a sale of land with an option to repurchase, or as an ordinary loan, or as a usurious transaction. The paper having no distinctive legal effect changing the status of the parties as fixed by the deed and the agreement eotemporaneously entered into, it is clear that this subsequent writing is not to be regarded as of any importance, save as to its evidentiary value in throwing light upon the question of what was in fact the nature of fbat agreement. This is equally true whether the paper was voluntarily executed without consideration, or was fraudulently procured by Mrs. Brown in the belief that it would strengthen her claim to the land in dispute. The controlling question in the case is whether or not the parties entered into a usurious agreement, and it was not incumbent on the plaintiff to affirm [840] atively show that the instrument styled a "release” was procured by fraudulent representations as to its nature, purpose and effect. Judgment affirmed. All the Justices concur, except Fish, G. J absent, and Lumphin, J., disqualified.