Opinion
13812.
JULY 8, 1941.
Petition for injunction. Before Judge Candler. Habersham superior court. April 19, 1941.
H. T. Oliver, for plaintiff.
R. C. Scott and J. B. G. Logan, for defendant.
1. Where there is evidence to the effect that the real purpose of the note and deed to secure debt was to borrow money from defendant with which to pay the debt of the husband, and that the wife signed and executed the note and deed to secure debt as surety with notice on the part of the lender, the wife is entitled to submit such issue to the jury. Braswell v. Federal Land Bank, 165 Ga. 123 (5) ( 139 S.E. 861); Magid v. Beaver, 185 Ga. 669 ( 196 S.E. 422).
2. In the instant case there is no contest between the plaintiff who claimed the building, and the Southern Railway Company which owned the land on which it was situated. The railway company was not a party to the security deed, and is not a party to this case. The lease memorandum introduced in evidence referred to "a building of the party of the second part [Ramsey] on right of way of the party of the first part," the Southern Railway Company. Other uncontradicted evidence showed that: (1) the building was where the bank now stands; (2) it was moved on the Cicero Burch lot; (3) in a little while it was moved again; (4) it was subsequently moved towards the old Sellars' home; (5) it was finally moved on the Southern Railway right of way. As between the parties to this case the evidence would have authorized a finding that the building did not become a part of the realty, but was removable as personality, and that it was the property of Mrs. Ramsey. Code, §§ 85-105, 85-201; Smith v. Odom, 63 Ga. 499 (2); Youngblood v. Eubanks, 68 Ga. 630; Carr v. Georgia Railroad, 74 Ga. 73 (2); Harrell v. Americus Refrigerating Co., 92 Ga. 443 ( 17 S.E. 623); Power v. Garrison, 141 Ga. 429 (2) ( 81 S.E. 225); Armour Co. v. Block, 147 Ga. 639 ( 95 S.E. 228); Wofford Oil Co. v. Weems-Fuller Co., 166 Ga. 173 (3), 175 ( 142 S.E. 887); Sawyer v. Foremost Dairy Products, 176 Ga. 854 ( 169 S.E. 115), s. c. 179 Ga. 809 ( 177 S.E. 584). This ruling does not conflict with the decision in Guernsey v. Phinizy, 113 Ga. 898 ( 39 S.E. 402, 84 Am. St. R. 270).
3. Where a vendee acquires possession under a contract to purchase, he can not, while he remains in possession, dispute the title of his vendor. Yerby v. Gilham, 147 Ga. 342 ( 94 S.E. 246). The doctrine that one asserting title under a conveyance is estopped to deny the truth of its recitals is based upon the "rule of common sense" that he is not at liberty to "claim under it and deny it at the same time." Hanks v. Phillips, 39 Ga. 550, 553; Yahoola River Mining Co. v. Irby, 40 Ga. 479; Cruger v. Tucker, 69 Ga. 557, 562; Jenkins v. Southern Railway Co., 109 Ga. 35, 40 ( 34 S.E. 355). It does not appear in this case that the grantee in the security deed was in possession of the property; yet the foregoing principles are applicable by analogy; and accordingly the grantee in the security deed can not claim under Mrs. Ramsey as one of the grantors, and at the same time dispute her title by claiming that the building is a part of the realty of the Southern Railway Company, where such grantor is seeking to invalidate the deed because contrary to the law which prohibits suretyship by a married woman. See Hamilton v. Williford, 90 Ga. 210 (4) ( 15 S.E. 753); Code, § 29-102; 21 C. J. 1070, § 29.
4. Under the pleadings and the evidence, the court erred in directing the verdict in favor of the defendant.
Judgment reversed. All the Justices concur.
No. 13812. JULY 8, 1941.
On September 29, 1937, R. E. Ramsey and his wife executed and delivered to A. M. Kitchen their joint note for $550, and a deed to secure the debt, conveying a building known as the B. C. Lawson Barber Shop or R. E. Ramsey building and leasehold on the Southern Railway right of way in the City of Cornelia. R. E. Ramsey died, and after default in payment of the note Kitchen advertised the property under the power of sale in the security deed. Mrs. Ramsey filed her petition for injunction, alleging that the debt was that of R. E. Ramsey, her husband, and not hers, and that she was merely a surety for her husband, and as such could not be held liable. She obtained a temporary order restraining Kitchen from proceeding with the sale. He demurred and answered; and he excepted to the overruling of the demurrer. On the trial Mrs. Ramsey admitted execution of the note and deed, but denied that she had received any of the money loaned by Kitchen. She testified further: The property involved is a barber-shop situated on the right of way of the Southern Railway Company in Cornelia. This building was given to her by her brother-in-law, R. D. Hawkins. She has been in control of the building since, and no one has exercised control or ownership except her and her husband who acted as her agent at times. Ramsey usually collected the rents with her authority and direction, and turned it over to her. The building was given to her in 1917, and was built where the First National Bank now stands, and was moved on the Cicero Burch lot, across the street where Fowler's Store is, and in a little while it was moved again, and witness had the building moved again toward the old Sellars Home where it stood a long time. The lease from the Southern Railway Company covering part of its right of way was made to her husband and in his name only, and afterward the building was moved upon land included in the lease. It was just the building that belonged to her."
The lease from the Southern Railway to Ramsey is not set forth in full in the record. So far as it appears, it contained no provision allowing the tenant to remove any building placed on the land, and did not deal at all with any such question. A lease memorandum introduced in evidence referred to "a building of the party of the second part [Ramsey] on right of way of the party of the first part [Southern Railway Company.]"
Kitchen, the defendant, testified: "The note and deed represents the sum of $550 paid to Mr. and Mrs. R. E. Ramsey for the purpose of saving their home for them, which was different property. Nothing was said about Mrs. Ramsey becoming a security on the debt or note. I had no connection with the debt due to Burch Kenney by Mr. Ramsey. Mr. Ramsey asked me to help him get Burch Kenney to give him time, and not foreclose. The note dated September 29, 1937, is the note that Mr. and Mrs. Ramsey signed for the $550, and I knew at that time Mrs. Ramsey was the wife of Mr. Ramsey. At the time of the loan the indebtedness to Mr. Kenney was settled, and canceled of record. I settled with Mr. Ramsey, and he was supposed to settle with Kenney, and undoubtedly did. The barber-shop was not involved in the Burch Kenney matter, and is not described in any of the deeds or mortgages from Ramsey. Mrs. Ramsey's name is not on the deed to Burch Kenney. The deed that Burch Kenney had was the deed that Ramsey gave to him, and Mrs. Ramsey's name is not on it. The money I let Mr. Ramsey have was to liquidate a debt that Mr. Ramsey owed. Mr. Ramsey was sick at the time I went to get this loan to pay off the mortgage Burch Kenney held against Mr. Ramsey. Mr. and Mrs. Ramsey didn't use the $550 in any partnership business — it was paid right out on the debt her husband owed, and I knew that when I obtained her note. At the time I took the deed to secure debt I did not know that Mrs. Ramsey owned the building now claimed by her. She was an old lady, and I wanted her to have full knowledge of what was going on is why I wanted her to sign the deed; but I did not think that she had any right in it at all. I did not accept a deed as the property of Mrs. Ramsey. I accepted it as the property of both of them, and not as security for her husband. The check was drawn to Mr. Ramsey, and I presumed that it was to pay off her husband's debt. Mrs. Ramsey's name was not in the check."
The judge directed a verdict in favor of the defendant. The plaintiff excepted to the overruling of his motion for new trial. There is no cross-bill of exceptions to the overruling of the demurrer, or assigning error on the ruling excepted to pendente lite.