Moseley et al. vs. Jenkins, guardian.

MOSELEY et al. vs. JENKINS, guardian.

On January 1st, 1859, A. W. Moseley, as principal, and J. A. Moseley, as security, made their note, payable one day after date, to Jenkins, for $650.00. Jenkins died. In 1867 his administrator brought suit thereon in the county court. In 1868 county courts were abolished. The papers were lost and the case was never transferred to the superior court, nor was any effort made to establish copies of the papers. In 1869, on a bill filed for direction by the administrator, the note was transferred by decree to Reid, guardian, and in the same year the administrator was discharged. In 1875 the guardian made a compromise with the makers of the note, by which they paid part of the money in cash, and made a parol promise to pay the balance agreed upon. Refusing to do so, the successor of Reid brought suit :

Held, that the suit being virtually abandoned in 1868, the statute of

limitations began to run, and more than six years having elapsed before the compromise, a parol promise was not sufficient to revive the claim.

Statute of limitations. Contracts. Before Judge SPEER. Putnam Superior Court. September Adjourned Term, 1879.

Reported in the decision.

W. B. WINGFIELD; W. F. JENKINS, for plaintiffs in

error.

H. A. JENKINS; J. W. PRESTON; CALVIN GEORGE; JACKSON & LUMPKIN, for defendant.

WARNER, Chief Justice.

This was an action brought by the plaintiff against the defendants to recover the sum of $550.00 which he claims to be due under an alleged compromise as set forth in his declaration. The defendants pleaded want of consideration, and the statute of limitations. On the trial of the case, the jury found a verdict in favor of the plaintiff. A

65 49

103 521

Mosely et al. vs. Jenkins, guardian.

motion was made for a new trial on various grounds, which was overruled, and the defendants excepted.

It appears from the evidence in the record, that the defendants, A. W. Moseley as principal, and J. A. Moseley as security, executed their promissory note to F. S. Jenkins for $650.00, dated 1st of January, 1859, and due one day after date, that suit was brought on said note by Young, as administrator of F. S. Jenkins, deceased, in the county court of Putnam county, in the year 1867, or 1868 that in 1868 the county court was abolished and the record of this case in the county court was never transferred to the superior court, but was lost, and no effort was made to establish it-and nothing was done to prosecute the suit. A bill was filed by Young, the administrator of Jenkins, for direction, etc., and a decree was had, in 1869, by which this note on the Moseleys, with others, was directed to be turned over to Reid as guardian, with authority to compromise and settle the same-to this bill the Moseleys were not parties. Young was discharged as administrator in 1869. In March, 1875, the alleged compromise of the $650.00 note was made with. Reid. The defendants paid $450.00 of the compromise money soon afterwards, but refusing to pay the balance due on the note by the compromise the present suit was brought, founded thereon, instead of on the note-and the controlling question in the case is, whether the plaintiff's right to recover the amount due on the note was not barred by the statute before the compromise in March, 1875, was made? The statute of limitations commenced

to run in favor of the defendants on the note on the 2d of January, 1859, and continued to run until 1860, when it was suspended until the 21st of July, 1868. By the constitution of 1868 county courts were abolished, and the books, papers and proceedings, and the unfinished. business thereof, were directed to be transferred to the superior court. Whether the suit upon this note in the county court was intended to have been abandoned or not,

Barnett et al. vs. The People's Bank of Newnan.

it was for all practical purposes abandoned. There was no effort or attempt to establish the papers in that suit (alleged to have been lost) in the superior court, from the 21st of July, 1868, up to the time of the alleged compromise in March, 1875, more than six years, and that being so, the plaintiff's right of action upon the note was barred both by the reason and spirit of the statute, if not by the letter thereof, before the compromise was made in March, 1875. The compromise was in relation to the money due on the note after the right of action was barred thereon by the laches of the holder thereof, and the parol promise made by the defendants at the time of the alleged compromise, did not take it out of the operation of the statute. Code, $2934. In view of the evidence contained. in the record and the law applicable thereto, the court erred in overruling the defendants' motion for a new trial. Let the judgment of the court below be reversed.

BARNETT et al. vs. THE PEOPLE'S BANK OF NEWNAN.

1. A demurrer to a bill in equity, whether general or special, should be filed and disposed of at the first term. But when the complainant seeks, by amendment, to strengthen his cause, a demurrer to the new case, as thus presented, may then be filed.

2. Since the act of December 12th, 1871, "To provide for sales of property in this state to secure loans and other debts," a court of equity cannot reform an absolute deed, executed under such act, into a mortgage for the purpose of protecting the wife's homestead, upon the allegation that such instrument was intended as a mortgage, was so understood by herself and husband, and that upon this understanding she gave her consent to its execution.

Equity.

Demurrer. Homestead. Deeds. Before Judge BUCHANAN. Heard Superior Court. September Term, 1879.

Reported in the opinion.

Barnett et al. vs. The People's Bank of Newnan.

C. W. MABRY; B. H. BIGHAM; THOMAS H. WHITAKER; F. S. LOFTIN, for plaintiffs in error.

W. A. TURNER; A. D. FREEMAN, for defendant.

CRAWFORD, Justice.

On the 24th of January, 1874, in consideration of the sum of $5,337.88, J. T. Barnett executed to the People's Bank of Newnan his deed to certain lands therein named, which was ratified, consented to and approved by Eliza J. Barnett, his wife, in writing, in the presence of a notary public. At the same time a promissory note, due October 1st next thereafter, was executed by the said J. T. Barnett for the rent of the said land for the year 1874. On the 20th day of October of said year, the bank sued out a distress warrant for rent, which was levied, and afterwards another warrant against Barnett as a tenant holding over.

Whereupon Eliza J. Barnett filed her application for homestead and exemption, and also filed her bill in equity against the bank, in which she alleged that on the 15th of February, 1873, J. T. Barnett borrowed of the bank $4,800.00, and gave his deed to the land described therein, with her consent, to secure the payment of the debt; that on the 24th of January, 1874, he renewed the debt and gave a new deed, with her consent, as before, to secure the payment; but that the bank, on the 19th day of October, 1874, recorded an absolute deed, and foreclosed a lien by distress warrant for rent, which was levied upon $1,000.00 worth of her exempted property. She further alleged that the papers which she approved were represented to her as mortgages; that the one executed in 1873 was usurious; that of 1874 was on a printed form, as the first, and understood to be nothing but a mortgage. The prayer of the bill was, that the deed be reformed and corrected so as to make it a mortgage, and that her homestead and exemption be protected.

Barnett et al. vs. The People's Bank of Newnan.

This bill was afterwards amended by alleging that the lands conveyed to the bank were not the same set apart to her as a homestead; that the first deed was tainted with usury, and should be set aside; that the second was given by Barnett whilst the title was not in him, but that it was agreed to be renewed, and whilst it was so prepared and she had given her consent thereto, the bank, in some fraudulent way, substituted the absolute deed therefor, without his knowing that he was signing such a paper at the time; it was therefore void for fraud in the procurement of the same. That the bank has forcibly deprived her of the possession of her homestead, although the same is not written in any of the bank's deeds. The prayer is, that all the deeds be declared inoperative and void as against her homestead, that the possession be delivered up and confirmed to her, that an account be taken of the payments made to the bank, the balance of the property sold, and $1,000.00 of the proceeds be paid to her, and the remainder divided among the creditors of the said Barnett.

Upon the filing of this amendment, counsel for the respondent demurred to the bill as amended, and after argument had thereon, the demurrer was sustained by the court, and the bill dismissed. This judgment of the court was excepted to, and is now assigned as error:

1st. Because of the time, it being at the hearing when the cause stood for trial, and no demurrer should then have been heard.

2d. Because the bill, as amended, should have been tried upon the merits and the demurrer overruled.

1. The office of a demurrer to a bill in equity is to deny the jurisdiction of the court, the equitable right of the complainant, the liability of the respondent, or that there is a non-joinder or misjoinder of parties or causes of action, and must arise upon the allegations on the face of the bill. It should always be filed and disposed of at the first term, unless continued upon good cause shown, and, whether it be general or special, the rule is the same, and the judg