Lowe v. Findley , 141 Ga. 380 ( 1914 )

Beck, J.

(After stating the foregoing facts.) So far as it affected the petitioners C. A. Lowe, G. W. Lowe, and Lilla L. Moore (being all of the petitioners except F. A. Lowe), the ruling of the court sustaining the general demurrer and dismissing the case-was not error. Dealing with the ease made by the plaintiffs named, and not with that of F. A. Lowe, with whose cause of action we deal further on, it is to be observed that the deeds executed by them were absolute conveyances of the property in fee simple to the grantee. To have permitted them to show by parol evidence that previously to or contemporaneously with the execution of the deeds there was a parol agreement that a bond for title should be given, binding the grantee to reconvey, would be in effect to permit them to engraft upon the deed a new and additional contract which the plaintiffs did not allege was intended to have been inserted by the parties thereto or was agreed to and was omitted by mistake. It would in effect be converting the absolute deed into a mere security deed; 'and this could not be done where possession of the property had been surrendered. “The deed is a clear, definite, and specific contract, and parol evidence is inadmissible to attach a stipulation thereto, to vary its terms or affect the rights of the parties thereunder.” Hall v. Waller, 66 Ga. 483. But for an additional reason the plaintiffs referred to failed to state a cause of action, in that they showed no privity of contract between themselves and the defendant Findley. They do not even claim that there was a parol agreement or contract on his part to make bond for title to them. But as to F. A. Lowe a different state of facts was shown. A parol agreement on the part of Findley to make a bond for title to F. A. Lowe is shown. And it has been held in several decisions made by this court, under the provisions of § 3258 of the Civil Code, that a deed absolute on its face, when not accompanied by possession of the grantee, may be proved by parol to be a mortgage only. Askew v. Thompson, 129 Ga. 325 (58 S. E. 854). Under these rulings we think that F. A. Lowe should have been permitted to show a parol agreement for the execution of a bond for title by the grantee in the deed executed by him, and thus convert that deed, absolute on its face, into a security deed, if he never surrendered possession of the premises embraced in the instrument. Now,'how stands his showing in the petition, as to the question of retention by the grantor of possession of these premises or a delivery of them to the grantee? The allegation in the petition touching this question, is, “F. A. Lowe and W. B. Lowe went into possession of the landed interest of the estate, agreeing that each one of' them should" take two of the lots of land.”’ And then, after reciting the negotiation between himself and his brother, W. E. Lowe, on the one hand, and the defendant Findley on the other hand, as to the loan of money and the execution of the deed and the agreement as to the execution of a bond for title, all of which appears more fully in the statement of facts, the petition alleges: “That in the fall of 1909 the plaintiff F. A. Lowe decided to rent out his share of the place and sow some of it down in grain and remove therefrom to Duluth, Ga., in Gwinnett county; and after doing so, or at least removing a part of his household goods, he left a part thereof locked up in the house on said place; but that the said W. E. Lowe and B. J. Findley, and others to whom they claimed to rent petitioner’s premises, did break open and enter the house of the said F. A. Lowe and throw his things left therein therefrom, and fraudulently and with force take possession of said place, in the absence of the said F. A. Lowe and without his consent.” While these allegations of retention of possession by F. A. Lowe, and the description of the premises of which he retained possession, might have been held to be insufficient if attacked by special demurrer, as against a general demurrer they were sufficient to show that F. A. Lowe did not surrender possession of the premises to Findley, the grantee, and that Findley had never lawfully obtained possession of them; and therefore that F. A. Lowe was still in the position of one who, having made a deed absolute on its face, claims that it was a security deed merely, because of an agreement or contract on the part of the grantee to execute a bond for title conditioned to reconvey upon payment of the debt owing to the grantee. And that being true, his petition should have been retained so that upon the trial. the evidence offered by him to sustain his allegations might have been heard and passed upon by a court and Jury.

The fact that it is here decided that certain of the plaintiffs can not recover should not work a dismissal of the entire case, this being an equitable petition to establish the plaintiffs’ right to their interest in the proceeds of the sale of the lands; and it does not fall within'the rule that where in a joint action at law for the recovery of land one or more of the plaintiffs fail all must fail. It follows from what we have said, that the judgment of the court dismissing the case as to all the plaintiffs on general demurrer should be reversed.

Judgment affirmed in part, and reversed in pari.

All the Justices concur.