Woodward v. Fuller

George, J. The amendment should have been allowed. It is to be noticed that the plaintiff purchased the Robert Woodward tract of land on March 7, 1904. She contracted to purchase the [242] tract of land, described as the 108-acre tract, from the heirs of her father in January 1907. She applied to and obtained from the defendants the mpney with which to pay the purchase-price of this latter tract. The deed was taken to the plaintiff, and she in turn executed a warranty deed to the defendants. She did not convey to the defendants the Eobert Woodward tract. On February 1, 1907, seventeen days after the execution of the deed by which she conveyed to the defendants the 108-acre tract, the plaintiff requested the defendants to pay off the balance due upon the loan upon the Eobert Woodward tract. The defendants paid the balance due upon this loan, and received from the mortgage company' a quitclaim deed to the land. The amendment alleges that Eobert Woodward did not transfer his bond for title from the loan company to the defendants, and that he had never made to the defendants any deed to the land formerly owned by him. On March 11, 1907, the defendants executed a bond for title to the plaintiff, which she accepted. It is true that in the original petition the plaintiff alleged that she was entitled to have the conditions of the bond performed and title to all the land made to her, according to the terms of the bond. The amendment does not deny title in the defendants to the Eobert Woodward tract of land. It does deny absolute and unconditional title in them. It recognizes that the defendants succeeded to the title held by the mortgage company, but that they hold the title solely for the purpose of securing the amount of money advanced by them to the mortgage company upon the Eobert Woodward loan. The loan by the defendants to the plaintiff of $1100 and the payment of $300 to the mortgage company upon the request of the plaintiff, in our opinion, under plaintiff’s allegations, constitute separate and distinct transactions. The mere acceptance by the plaintiff of the defendants’ bond for title conditioned to convey both tracts of land upon the payment of an aggregate sum of money, made up of the item of $1100 and the item of $300, as disclosed by the petition, will not estop the plaintiff from showing the true transaction. If she has paid the $300, together with interest thereon, advanced by the defendants to the mortgage company for her benefit, there would appear to be no good reason in law or in equity why she can not have the relief prayed in the rejected amendment, assuming her allegations to be true. See McCandless v. Inland Acid Co., 115 Ga. 968 (43 S. E. 449). The amendment set forth a cause of action, and we do not think [243] it sot irp a new and different cause of action from that set out in the original petition. The court having erroneously refused the amendment, the subsequent trial of the case was nugatory. Judgment reversed. All the Justices concur.