LeSueur v. Crawford

99 S.E. 46, 23 Ga. App. 549, 1919 Ga. App. LEXIS 201

Opinion

Jenkins, J.

(After stating the foregoing facts.) Since, by the terms.of the conditional contract sued upon, the defendant was not to become liable thereon until the pending claim case involving the question as to whether the land was or was not subject to the indebtedness of M. B. Fitts to the Barnesville Bank had been adjudicated in favor of Mrs. Frances Amanda Fitts, and the petition showing upon its face that a judgment had been rendered adversely to her, the court did not err in sustaining the general demurrer and dismissing the" petition. Even though the judgment finding the property subject should be set aside for fraud, the plaintiff would not thereby be entitled to maintain his present suit; for the defendant’s liability is, by the terms of the contract itself, made, subject to the final adjudication of this question, and the setting aside of the former judgment would leave that matter undetermined.

Judgment affirmed.

Wade, C. J., and Luke, J., concur.