Coles v. Mozley

95 S.E. 963, 148 Ga. 21, 1918 Ga. LEXIS 170

• Court: Supreme Court of Georgia
• Decided: April 11, 1918
• Docket: No. 552
• Status: Published

Opinion

Atkinson, J.

1. “The consideration of a deed may always be inquired into when the principles of justice require it.” Civil Code, § 4179; Thrower v. Baker, 144 Ga. 372 (87 S. E. 301); Coldwell Co. v. Cowart, 138 Ga. 233 (75 S. E. 425), and cit.

2. It follows that where A conveys land to B by deed reciting a money consideration, in a suit brought by A’s trustee in bankruptcy against B’s executors, alleging that the consideration was as expressed in the deed, and that only part thereof had been paid, and seeking to subject the land specified in the deed to the alleged balance due, it may be explained, as a valid defense to such suit, that the consideration named in the deed was not the actual consideration, and that the consideration agreed upon between the parties had been paid. The recital of the consideration of the deed on which this action is based is not of such character as amounts to a covenant; and the principle ruled in Southern Bell Tel. Co. v. Smith, 129 Ga. 558 (59 S. E. 215), L. & N. R. Co. v. Willbanks, 133 Ga. 15 (65 S. E. 86, 24 L. R. A. (N. S.) 374, 17 Ann. Cas. 860), Riverside Milling Co. v. Bank, 141 Ga. 578 (3), 581 (81 S. E. 892), and similar cases has no application.

No. 552. April 11, 1918. Rehearing denied May 17, 1918.

Equitable petition. Before Judge Ellis. Eulton superior court. July 7, 1917.

Lovich G. Forison, for plaintiff. J. E. Mozley and H. B. Moss, for defendants.

3. The evidence was sufficient to support the verdict, and none of the grounds of the motion for new trial show cause for reversal.

Judgment affirmed.

All the Justices concw, except Fish, G. J., absent.