Wager v. Carrollton Bank

Per Curiam. 1. The deed between the bank and Spence, when construed in the light of the contemporaneous contract between them, was one to secure a past-due indebtedness; and in consequence of this fact the bank was not a bona fide purchaser for value, and its deed was not superior to the lien of the plaintiff for material furnished and work done in completing the building. Mize v. Bank of Whigham, 138 Ga. 499, 503 (75 S. E. 629), and eit.; Harris v. Evans, 134 Ga. 161 (3) (67 S. E. 880). It follows that the court erred in giving the instruction complained of in the first special ground of the motion for a new trial, this instruction being based upon the theory that the deed was made in satisfaction of a pre-existing indebtedness due by the grantor to the grantee. 2. The court erred in excluding a copy of the record in a former trial, offered in evidence by the plaintiff. By this record it was sought to be shown that counsel for the claimant moved the court to direct a verdict for $4.55 and costs in favor of the plaintiff, the $4.55 being the amount claimed under the plaintiff’s lien as a materialman. The movant insists that this motion was an admission in judieio that the claimant had notice of the claim of lien of the plaintiff, and only contested the balance of the amount claimed on the ground that the plaintiff was not a laborer but a mechanic. This insistence was also made before this court (Wager v. Carrollton Bank, 156 Ga. 783, 120 S. E. 116), and [509] was decided adversely to the claimant. This evidence should have been admitted. No. 5024. July 14, 1926. 3. The above rulings make it unnecessary to consider any other assignments of error. Judgment reversed. All the Justices concur. J. J. Reese and S. Holderness, for plaintiff. Willis Smith and Boykin & Boykin, contra.