Wardlaw v. Woodruff

Hill, J. In 1915 W. E. Wardlaw borrowed from C. E. Johnson $6000, and to secure the loan executed five notes for $1200 each, maturing yearly over a period of five years, and secured the loan with a deed conveying two hundred acres of land in Muscogee County. Through successive assignments the security deed and notes were held and owned by George C. Woodruff in 1926. Prior to the execution of the security deed W. E. Wardlaw had a homestead set apart to him in the land described. Wardlaw died in 1922, and his widow, the sole surviving beneficiary under the homestead, died in 1916. Wardlaw paid one note for $1200 in 1916, and since that date nothing has been paid on the debt. In November, 1931, George C. Woodruff proceeded to advertise the land for sale; whereupon Albert E. Wardlaw and others, as executors of the will of W. E. Wardlaw, deceased, and as his heirs at law, filed a petition for injunction, cancellation of the security deed, etc. The court dismissed the petition on general demurrer. The plaintiffs sued out a writ of error to the Supreme Court, which affirmed the judgment. Wardlaw v. Woodruff, 175 Ga. 515 (165 S. E. 557). In this case no supersedeas was granted, and in January, 1932, Woodruff sued out a dispossessory warrant against Albert E. Ward-law, after having the land sold and bidding it in. Wardlaw, together with the same parties in the prior proceedings, then filed a petition in equity to enjoin the eviction of Wardlaw, for cancellation of the security deed, and for other relief. On demurrers to the petition the court passed an order reciting that there had been no valid tender of the money admitted by the plaintiffs to be due on the debt; that the plaintiffs were given until January 10, 1933, to tender or to pay into the registry of the court the amount admitted to be due; and that unless this was done by noon on the date named, the demurrer would be sustained and the petition dismissed. No further tender was made, and the court by final order dismissed the case. To this judgment the plaintiffs excepted. The petition sets up as grounds for cancellation of the security deed a number of reasons urged in the former suit (175 Ga. 515, supra); and further, that, in the consummation of the original loan to W. E. Wardlaw, deceased, O. C. Bullock charged ten per cent, of the amount of the loan as commission, and this infected the loan with usury which voided the title and the security deed; that the fact of this commission having been charged and paid [242] was not known to the plaintiffs at the time of the trial in the former suit, and could not have been ascertained by the exercise of diligence; that prior to the sale referred to the petitioners offered to pay to Woodruff $4800 principal, plus 8 per cent, per annum simple interest, which he refused, and demanded the principal plus 8 per cent, per annum compounded annually, which petitioners refused to pay, for the alleged reason that the demand was violative of the interest provisions incorporated in the notes. By amendment it was alleged that “said tender was made on the 27th day of November, 1931, in open court and during the hearing of the interlocutory injunction of the former suit; . . that the actual money was not exhibited and physically presented to the said defendant, for the reason that the tender and offer were refused, and further tender was thereby waived.” In Wardlaw v. Woodruff (supra) it was held that a contract to pay 8 per cent, interest per annum semi-annually, with interest on the semi-annual payments of interest due, does not constitute usury. In the present case it is further alleged, as showing that the transaction was infected with usury, that a commission of ten per cent, on the principal sum of $6000 was charged and paid. In the case tried on the first injunction proceeding the plea of usury was raised and passed on, and the ruling of the trial court thereon was affirmed by the Supreme Court. This ground of attack could and should have been made in the prior case. Civil Code (1910), § 5943; Haynes v. Armour Fertilizer Works, 146 Ga. 832, 834 (92 S. E. 648), and cit. The trial judge, in his ruling on the demurrers in the present case, states: “It will be observed by reference to the amendment, . . that it is alleged by the petitioners that a tender was made in the former suit herein referred to in this order, and that the tender was refused. It is nowhere alleged in the present suit . . that a tender or an offer to pay the amount admitted to be due George C. Woodruff has been made since the alleged tender in the former suit; and the only reference to the tender was in a former suit which has been adjudicated by the decision hereinbefore referred to, by the Supreme Court of Georgia.” The court further allowed the plaintiffs time'within which to pay into the registry of the court the amount admitted by the plaintiffs to be due; failing which the court made a final order dismissing the peti [243] tion. In Barnett v. Terry, 42 Ga. 283, 288, it was said: “When tender is set up in bar of an action pending, the court may call on the party tendering to pay the money into court. It is an admission of so much money due; and if the party relies on it as a plea to release him from interest, it is not error to call on him to comply with his offer, for the plea sets up he is then and has been ready to pay that sum admitted to be due. If he desires advantage from it, he must be ready to perform when called on by the court.” In Brantley v. Wood, 97 Ga. 755, 759 (25 S. E. 499), it was said: “We do not now decide whether the plaintiffs were or were not entitled to an injunction under the evidence submitted. But assuming that they were, the court very properly required, as a condition precedent to the granting of this relief, that they should first pay the principal and interest legally due on the debt secured by the mortgage. This requirement rests upon the time-honored maxim that ‘he who seeks equity must do equity.’” In this case on the former occasion it was held: “Before a borrower who has executed a deed infected with usury can have affirmative relief, such as injunction to prevent exercise of the ’power of sale by the grantee in such security deed, he must pay or tender to the grantee the principal sum due.” 175 Ga. 515, 517, supra, and cit. The judge did not err in dismissing the petition on demurrer. Judgment affirmed. All the Justices concur.