Johnson v. Redwine

25 S.E. 924, 98 Ga. 112

• Court: Supreme Court of Georgia
• Decided: January 20, 1896
• Status: Published

Opinion

Atkinson, Justice.

1. The proposition announced in the first head-note requires no elaboration; it is a restatement of elementary law.. See 1 Addison on Contracts, p. 29, §14.

2. The plea of the defendant was properly stricken on demurrer. It was a plea .that the promissory note sued on -was without consideration. It alleged that the payee, as an -heir at law of his deceased wife, who was a daughter of' the maker, claimed an interest in certain lands which he (the maker of the note) had caused to be set apart as a homestead which was sued out in right of Iris wife and children; that the land so set apart was bought with his-money, and that the note was given in settlement of the-supposed right of the payee and to jirevent the execution of a threat he had made to proceed for partition. There-was no allegation that the title was taken in his name, or-that the deceased daughter did not have a resulting interest. So that if the plea could be treated as alleging that the-contract was entered into by the maker under a mistake as to the rights of the payee, leaving no consideration, legal or-moral, to support the contract of compromise, it is wholly defective in the two respects above indicated. For if the-daughter really had a resulting interest, or the title was-taken originally in the name of the maker’s wife and children (and this we must presume in the absence of an allegation to the contrary), then there was ample consideration to support the agreement to compromise, and as well the promissory note made in the further execution of .that contract. We conclude, therefore, that the plea interposed no legal obstacle to a recovery by the plaintiff, and the court did not err in striking it upon demurrer.

Judgment affirmed.