Rountree v. Finch , 120 Ga. 743 ( 1904 )

Fish, P. J.

1. It has been frequently held by this court that a motion to dismiss, in the nature of a general demurrer, may be made at the trial. The ground of the motion to dismiss in this case was, that no cause of action was set forth. This was not a ground of the demurrer which was “dismissed,” presumably because not filed at the first term, and its “ dismissal ” did not preelude the defendants from making the motion, in the nature of a general demurrer, to dismiss the petition.

2. The court did not err in dismissing the petition, as under its allegations the petitioner was not entitled to the relief sought. It appeared from the deed of the Georgia Loan and Trust Company to Mrs. Boone, which was set out in the body of the petition and made a part thereof, that Mrs. Finch had transferred the bond for title which she held from the loan company to Mrs. Boone, and that the latter had “ fully paid the said loan; ” therefore, the title to the property was put in Mrs. Boone by the deed from the loan company. If the bond was transferred to her prior to the execution of the mortgage, then, of course, she took the title unincumbered by the mortgage. It was, therefore, essential to petitioner’s case that the petition should show that the execution of the mortgage antedated the transfer of the bond for title. This nowhere appeared in the petition. There was no allegation that Mrs. Boone did not pay Mrs. Finch the full value of the latter’s interest in the property 'as consideration for the transfer of the bond for title; and the presumption was that Mrs. Boone paid the loan company the full amount of the loan, with interest. The deed from the company to her recited, that the loan was for three hundred dollars, and that she had “fully paid the said loan;” and then, too, it was paid just two months before its maturity, and there was no suggestion that she paid any less than the three hundred dollars and the interest which would be due at the maturity of the loan. The amendment alleged that there was a fraudulent agreement between Mrs. Finch and her daughter, Mrs. Boone, to have the loan company make Mrs. Boone the deed, “by reason of the fact that the consideration expressed is so grossly inadequate as to make it a fraud upon complainant, said property at the time of said transaction and at this time being worth not less than $1,000.” The only “consideration expressed,” or referred to, in the deed was the amount of three hundred dollars, for which the company held the title as security, and it could claim no more than that amount and whatever interest there was due on it, or would be at the maturity of the loan, and when Mrs. Boone paid that much, if she was then the owner of the bond for title, she was entitled to a deed from the company to the property, without regard to its value; and if she was the bone fide transferee of the bond for title prior to the execution of the mortgage, then the petitioner, as transferee of the mortgage, had no right to complain.

Judgment affirmed. All the Justices concur.