Summary
In Trustees of Jesse Parker Williams Hospital v. Nisbet, 189 Ga. 807 (7 S.E.2d 737), it was said that a contract of a foreign State which constituted one of the thirteen original colonies, or of a State which was derived from territory included in one of the colonies, would be construed under the rules of the common law, but that these rules would have no application to the contract of a State that was never a part of English territory.
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13054.
FEBRUARY 14, 1940. REHEARING DENIED MARCH 15, 1940.
Equitable petition. Before Judge Pomeroy. Fulton superior court. August 1, 1939.
Hirsch, Smith Kilpatrick, Philip Weltner, E. D. Smith Jr., and Louis Regenstein Jr., for plaintiffs in error.
Arnold, Gambrell Arnold, contra.
1. Florida not being one of the thirteen original colonies or derived from territory belonging thereto, a contract of that State will be construed by the courts of this State according to the statutes and laws here of force, in the absence of any pleaded particular statute of that State governing the construction of the contract, or any pleaded general statute adopting the common law of England.
2. Ordinarily executory contracts require a valuable consideration, or a good consideration founded either on love and affection toward one to whom there is a natural duty, or on some strong moral obligation supported either by an antecedent legal obligation presently unenforceable, or by some present equitable duty.
3. The Code provisions relating to specialties merely express principles of the common law, under which instruments such as bonds, when not only sealed but formally delivered by solemn ceremony or its equivalent, were recognized as specialties, and as such required no consideration. But these rules did not preclude the defense of want of consideration as to instruments such as promissory notes, which, although under seal, did not conform to other requirements of a common-law specialty. Especially was this true where, as here, the recitals of the instrument showed the actual absence of a consideration, and, if the writing were taken as an ordinary contract under seal, would thus preclude from operation any sort of presumption as to a consideration.
4. The common law recognized as specialties, requiring no consideration, not only "double" or conditional bonds with a penalty and defeasance clause, but other sealed and formally delivered obligations known as "single" bonds. These rules as to specialties remain of force in this State. They include like instruments creating gifts of money payable in the future. The instrument here in question created a gift of money payable in futuro, and conformed to all the requirements of a commonlaw single bond, by its character, sealing, formal delivery, acceptance by the obligee, recital of delivery in the presence of an attesting witness, and formal acknowledgment of delivery before an authorized officer of the State of its execution, even though some of these formalities may have been unnecessary to make the instrument a common-law specialty. Accordingly, it was not open to the defense of a want of consideration.
5. While the petition, under our uniform-procedure act, prayed both for a judgment at law on the instrument and for equitable relief relating to assets of the defendants, the equitable relief was merely incidental to the common-law judgment. Therefore the legal rules, precluding an attack on the instrument for want of consideration, were applicable, whether or not the holding of earlier decisions, that no consideration is necessary in the case of a specialty even in a court of equity, also should be applied.
6. The petition did not show a bar of the action by any statute of limitations or by laches.
7. The court did not err in overruling the demurrers to the petition, even though one incorrect reason was assigned for the decision.
No. 13054. FEBRUARY 14, 1940. REHEARING DENIED MARCH 15, 1940.
Mrs. Idella Holloway Nisbet filed against the "Trustees of Jesse Parker Williams Hospital," a corporation, and against the trustees under the will of Mrs. Cora B. Williams, deceased, a petition praying for a money judgment against the corporation for $210,000, plus interest, and alternatively for a money judgment for such amounts against the defendants, to be paid out of the sum in the hands of the corporation which was being administered by the defendants, and for an injunction against changing the statute or identity of assets in the hands of the defendants pending the suit as to a sufficient amount to pay the sum claimed. The claim for a money recovery was based on an instrument as follows:
"Lanark, Fla., April 16, 1923.
"Mr. J. L. Nisbet, Lanark, Florida.
"Dear Sir: Please purchase for me and my account all the capital stock of the Ga., Fla. Alabama Ry. Co., not now owned or controlled by me. You are authorized to take option for the purchase of the same in such form as you think best. Since the fall of 1914 you have worked for me and my business interests at a comparatively small salary and compensation, especially in view of your responsibilities; true, I have verbally instructed you to take credit for and charge to my account on the books of my land interests some additional monies, but the salaries and these such other monies and credits that you have so received from my business interests have been and are, all of them, out of proportion to the responsibilities you have borne, the work you have done, what you have accomplished and the faithfulness of your service. Therefore, in the event of any sale by me, my estate, my heirs, executors, administrators, and assigns, of more than 50 per cent. of the securities of the Ga., Fla. Ala. Ry. Co., now owned by me, or hereafter to be owned or held by me, my heirs, executors, administrators, and assigns, or my estate, or the placing of the control of the property of that railroad i other hands, you, your heirs and assigns, at the time of such sale or at the time of such action, are to receive the sum of $10,000, and thereafter, on the 3rd day of January of each succeeding calendar years, for ten calendar years, you and they are to receive from the same source the sum of $20,000, a total payment to you, your heirs and assigns, of $210,000 to be paid you and them by me, my estate, my heirs, executors, administrators, and assigns; this all in addition to any other monies or compensation of any sort that you may now receive or may hereafter receive from me, my estate, my heirs, executors, administrators, and assigns. I hereby ratify all your acts, deeds, and accounts as performed and kept by you, and all records and accounts and money formed and kept by you, and all records and accounts and money transactions handled by you for me individually, and all actions and accounts handled by you as general agent of the railway company, Ga., Fla. . Ala. Ry. Co., and as secretary and treasurer of J. P. Williams Land Company, a Florida corporation, and as an official of any sort or a director of either or both of said corporations, and as an official or director of the Lanark Improvement Company, and the Lanark Hotel Company.
"In testimony of the foregoing I have hereunto set my hand and seal, this 16th day of April, 1923, at Lanark, State of Florida.
"Cora B. Williams (L. S.), individually, and as President of the Georgia, Florida Alabama Railway Company, and as President of the J. P. Williams Land Company, and as President of the Lanark Hotel Company, and as President of the Lanark Improvement Company.
"Signed, sealed, and delivered in our presence: Ruby L. Hill.
"Accepted: J. L. Nisbet (L. S.)"
Attached to this instrument was an acknowledgment by its maker, bearing the same date, before a notary public of Florida, acknowledging that she had "signed, sealed, and delivered" it for the purposes therein expressed.
On December 26, 1927, and February 27, 1932, Nisbet executed assignments of the instrument to his wife, Idella Holloway Nisbet, the plaintiff. In the latter writing, he stated: "I further affirm that the purchase of `all of the capital stock of the Georgia, Florida Alabama Railway Company,' not then owned or controlled by the said Cora B. Williams, was in no way part of the service on account of which these monies [referred to in the assignment as in the original instrument] were to become due me and are now due me." The petition sued on the instrument quoted, as its assignee under these writings. The petition filed in February, 1939, alleged that Mrs. Cora B. Williams, the maker of the instrument, died in March, 1924, leaving an estate valued at from $1,000,000 to $3,000,000, with a will providing for certain trusts to the defendants; that Nisbet, the assignor, died in February, 1939; that "all of the securities in the Georgia, Florida Alabama Railway Company owned by Mrs. Cora B. Williams at the time said contract and acknowledgment was signed were sold and transferred for value by her executor under authority in her will and under authority of an order of Fulton superior court during the year 1926; that no part of the money due under the instrument had been paid either to Nisbet or the plaintiff assignee; that under the will of Mrs. Williams the defendants took over the residuary estate of the value of approximately $2,500,000, without paying the debt and in violation of plaintiff's rights; and that upon demand they declined to pay the amount claimed.
The defendants demurred to the petition as stating no cause of action or ground for the relief prayed, and because "it appears from the petition and the exhibits thereto that the purported contract with Mrs. Cora B. Williams is void and unenforceable and not founded on any valid or legal consideration," and is "a mere offer of a gratuity;" and "it appears from the petition and the exhibits thereto that the suit is barred by laches and unreasonable delay." The judge overruled the demurrers and held that "the alleged obligation . . is under seal;" that "there is no direct present and valuable consideration, unless such be adduced from a continuance of service and instructions to buy more stock, which is doubtful, but which may provide a moral obligation;" that "the moral obligation, if any, is adduced from past services paid in full, but not in an amount sufficient to satisfy the obligor, or in an amount commensurate with the service rendered, and in view of the other circumstances;" that "the obligation, if any, is created by the instrument itself," and "there is no previous demand or obligation, no dispute — therefore there could be no compromise;" that "the recitals in the instrument appear to give all the reasons for its execution;" and "if there be a presumption of validity from the fact that it is under seal, such presumption would be resolved under its terms;" that "the moral consideration provided for in the Code is sufficiently shown to support the promise, especially where it appears that some benefit accrued to the obligor, such being a new assignment of service in buying stocks and an apparent continuation of important duties; and that under the pleaded facts the question of laches was not one of law but one of fact for a jury. The defendants excepted to that judgment.
1. Where a pleaded contract not only is executed in a foreign State, but contains nothing to indicate by the place of performance or otherwise that it was intended to be construed as a Georgia contract, it will be treated as a contract of the foreign State, and governed by its laws. Jackson v. Johnson, 67 Ga. 167 (2), 182; Davis v. DeVaughn, 7 Ga. App. 324, 325 ( 66 S.E. 956).
( a) A contract of a foreign State which constituted one of the thirteen original colonies, or which was derived from territory included in one of such colonies, will be construed and governed by the common law, in the absence of any pleading to the contrary. Slaton v. Hall, 168 Ga. 710, 716 ( 148 S.E. 741, 73 A.L.R. 891); Thomas v. Shepherd, 42 Ga. App. 558 ( 156 S.E. 724), and cit.
( b) And in such a case the construction of the common law given by the courts of this State will control, in preference to the construction given by the courts of the State of the contract. Slaton v. Hall, supra; Lay v. N.C. St. L. Ry. Co., 131 Ga. 345 ( 62 S.E. 189); Thomas v. Clarkson, 125 Ga. 72 (3) ( 54 S.E. 77, 6 L.R.A. (N.S.) 658); Motors Mortgage Corporation v. Purchase-Money Note Co., 38 Ga. App. 222 ( 143 S.E. 459), and cit.
( c) These rules, however, have no application to the contract of a State that was never a part of English territory, embraced in one of the original thirteen colonies or belonging thereto, and therefore did not inherit its laws from England. There is no presumption that the common law of England exists in such a State. Ga., Fla. Ala. Ry. Co. v. Sasser, 4 Ga. App. 276, 286 ( 61 S.E. 505); Reliance Realty Co. v. Mitchell, 41 Ga. App. 124, 126 ( 152 S.E. 295); 5 R. C. L. 820-822, §§ 12, 13; 11 Am. Jur. 169-171, § 16; 12 C. J. 199-202, §§ 31-33; 15 C. J. 631-633, §§ 19, 20. Under such circumstances, the law of the foreign State must be pleaded, in the absence of which it will be presumed that the law of this State obtains therein. Champion v. Wilson, 64 Ga. 184, 188; Wells v. Gress, 118 Ga. 566 (2), 567 ( 45 S.E. 418); Reliance Realty Co. v. Mitchell, supra.
( d) In accordance with the foregoing principles, although the instrument sued upon in this petition was a Florida contract, yet, Florida not being one of the original thirteen colonies or derived therefrom, there is no presumption that the common law exists in that State, even though it may have been adopted by statute. It follows that, in the absence of any pleaded Florida law, the contract will be construed in accordance with the laws and decisions of this State.
2. It is the general rule, that, in order to be enforceable, every executory contract must be supported by a valuable consideration, or, in the absence of a valuable consideration, by a good consideration founded either on love and affection toward one to whom a natural duty exists, or on a strong moral obligation supported either by some antecedent legal obligation, though unenforceable at the time, or by some present equitable duty. Code, §§ 20-301, 20-303; Davis v. Morgan, 117 Ga. 504 ( 43 S.E. 732, 61 L.R.A. 148, 97 Am. St. R. 171); Willingham Sash Door Co. v. Drew, 117 Ga. 850 ( 45 S.E. 237); Monroe v. Martin, 137 Ga. 262, 263 ( 73 S.E. 341); Worth v. Daniel, 1 Ga. App. 15, 17 ( 57 S.E. 898); McCowen v. McCord, 49 Ga. App. 358 (2) ( 175 S.E. 593), and cit.; 53 L.R.A. 353, note.
3. "In some cases a consideration is presumed, and an averment to the contrary will not be received. Such are generally contracts under seal, and negotiable instruments alleging a consideration upon their face, in the hands of holders in due course, who have received the same before dishonor." Code, § 20-301.
( a) At common law, only specialties were under seal, and all instruments sealed and formally delivered were specialties. Accordingly, the common-law definition of a specialty was a contract under seal. Chitty on Contracts (17th ed.). 2, 3. This definition of the common law has been retained in our Code, §§ 20-104, 20-301, as a mere statement of the common law. Sivell, v. Hogan, 119 Ga. 167, 170 ( 46 S.E. 67); Sims v. Scheussler, 5 Ga. App. 850, 856 ( 64 S.E. 99); Lacey v. Hutchinson, 5 Ga. App. 865, 867 ( 64 S.E. 105). The common-law definition of a specialty was both definitive and all-inclusive, in that it comprehended all instruments such as bonds, single and double, which at common law could be construed as specialties and were sealed and formally delivered, and excluded every other sort of instrument. Chitty on Contracts, supra; Anson on Contracts (3d Am. ed.), 82, § 80. But, as was pointed out by Judge Starnes in Albertson v. Halloway, 16 Ga. 377, 381, in the process of time, the exigencies of trade and commerce, or mercantile usage, or the customs of the people, among whom the credit system prevailed to a great extent, may have rendered common, as an evidence of contract, other instruments such as promissory notes, which, while possessing one of the characteristics of a specialty, that is, a seal, did not conform in other respects to the definition of a specialty as it was known at common law. Accordingly, it was held in the Albertson case that the presence of a seal on a promissory note did not preclude the defense of a failure of consideration. It will thus be seen that it is not the mere presence of a seal on an instrument which precludes the defense of a failure or an absence of consideration; but that such inhibition applies only to such instruments as were known to the common law as specialties, to the exclusion of those hybrid instruments which have grown up in commercial usage, but which do not conform to the definition of a common-law specialty. That this was the rule in Georgia before the passage of the uniform negotiable instruments law, which now declares that every negotiable instrument, that is, whether sealed or unsealed, is deemed prima facie to have been issued for a valuable consideration, but that absence as well as failure of consideration is matter of defense as against any person not a holder in due course (Code, §§ 14-206 (4), 14-301, 14-305), is plainly indicated by decisions of this court and the Court of Appeals before the passage of that law. See Albertson v. Halloway, supra; Beazley v. Gignilliat, 61 Ga. 187, 189; Lacey v. Hutchinson, supra; Sims v. Scheussler, supra; Strickland v. Farmers Supply Co., 14 Ga. App. 661, 664 ( 82 S.E. 161). Also Citizens Bank of Blakely v. Hall, 179 Ga. 662, 664 ( 177 S.E. 496), which, although a case under the negotiable instruments law, seems clearly to recognize and approve the rule above state. There appears to be nothing to the contrary in Rutherford v. Executive Committee of the Baptist Convention, 9 Ga. 54, 55, where the instrument was treated, not as an ordinary sealed promise to pay, but as a "specialty," and the common-law rule was stated, that "in the case of a specialty, no consideration is necessary to give it validity." In Justices of the Inferior Court v. Smith, 13 Ga. 502 (3), 505, the instrument was not a note but a voluntary sealed bond, and was likewise dealt with as a "specialty." In Smith v. Smith, 36 Ga. 184, 190 (91 Am. D. 761), there was no note but a sealed agreement, which was a family arrangement to compromise conflicting claims; and the court said that "the compromise of a doubtful right is a sufficient foundation for an agreement." There being a valid consideration, the further general reference to a sealed contract estopping a party from denying a consideration must be treated as obiter. In Sivell v. Hogan, 119 Ga. 167, 170 (supra), Mr. Justice Cobb, speaking for himself, but disclaiming any adjudication by the court, expressed the view that, while a failure of consideration could be pleaded in a suit on a sealed promissory note, such would not be true as to a plea of want of consideration. See Van Dyke v. Van Dyke, 123 Ga. 686, 690 ( 51 S.E. 582, 3 Ann. Cas. 978); Slaton v. Fowler, 124 Ga. 955 (3), 956 ( 53 S.E. 567).
( b) In accordance with the rule just stated, the mere presence of a seal would not prevent the defense of want of consideration, unless the instrument in question be taken as conforming to what was known as a specialty at common law, both as to the character of the instrument and as to its sealing and formal delivery. Especially would this be true where, as here, there can be no room for any presumption of a consideration to operate, since the instrument recites in itself as the consideration the inadequacy of the compensation which had already been fully paid by the promisor to the promisee for past services performed by the promisee under a contract between the parties. Since, under the ruling in division 2, supra, this did not constitute either a valuable or a good consideration, and since the instrument thus purported to speak for itself as to what constituted the consideration, there can be no room for any presumption to operate. Bruton v. Wooten, 15 Ga. 570 (3), 572; Bender v. Been, 78 Iowa, 283 ( 43 N.W. 216, 5 L.R.A. 597); 17 C. J. S. 74.
( c) Nor would the rule with reference to gifts operate to change the rule; for, under the law of the Code, a gift of personalty by parol must be accompanied by delivery and acceptance of the article given; and while a gift evidenced by an ordinary writing (as distinguished from a specialty) dispenses with the necessity for a delivery of the article, such a writing does not ordinarily, in the absence of actual or constructive delivery, dispense with the necessity for a "good consideration." Code, §§ 48-101, 48-104; Burney v. Ball, 24 Ga. 505 (3), 514; Wyche v. Greene, 11 Ga. 159 (14), 177. See, in this connection, 63 A.L.R. 540, 545, notes. Accordingly, if the instrument sued on were merely an ordinary writing, though under seal, and it should be construed as a gift, the general rule of the Code, requiring at least a "good consideration" in the case of undelivered property evidenced by a writing, would obtain as in other forms of contract.
4. Those instruments which were recognized at common law as of the nature and character of specialties, such as bonds, single or double, or deeds conveying the title to land or personalty, executed under seal, accompanied with the formal ceremony of delivery as recognized by ancient usage, or its more common later-day equivalent by a recital of delivery in the instrument (see 1 Cooley's Blackstone, 4th ed., 679, 680), were enforced, not because there was a conclusive presumption of consideration, but because instruments of that nature and executed with such solemnity did not require a consideration. 1 Addison on Contracts (Morgan's ed.), 46; Chitty on Contracts (17th ed.), 4; Albertson v. Halloway, 16 Ga. 377, 379 (supra); Lacey v. Hutchinson, 5 Ga. App. 865 (2), 867 (supra). If, therefore, the instrument here involved should be treated as measuring up to the requirements of a common-law specialty, and if the rule at common law that such instruments did not require a consideration still obtains in this State, save with respect to deeds conveying the title to land or personalty, which has been changed by statute (Code, § 29-101; Citizens Southern Bank v. Farr, 164 Ga. 880, 139 S.E. 658, and cit.), then the fact that no consideration was shown or could be presumed, or even that the instrument itself shows that none in fact existed, would not operate to render the instrument invalid.
( a) The common law of England, of force in this State on May 14, 1776, remains of force, so far as it is not incompatible with the Federal or State constitution or has not been modified by statute. Code, § 2-8503; Flint River Steamboat Co. v. Foster, 5 Ga. 194 (5) (48 Am. D. 248); Tucker v. Adams, 14 Ga. 548, 569, 570; Alexander v. Dean, 157 Ga. 280, 283 ( 121 S.E. 238). The rule of the common law, recognizing as a specialty a bond or like instrument accompanied by a seal and formal delivery, and therefore dispensing with the necessity for any consideration, not having been varied by statute or by construction in any contrary decision, remains of force. See Stephens v. Crawford, 1 Ga. 574, 582 (44 Am. D. 680), 3 Ga. 499, 506; Justices of the Inferior Court v. Ennis, 5 Ga. 569, 570; Albertson v. Halloway, 16 Ga. 379, 381 (supra).
( b) Although the form of bond now commonly in use in civil and criminal proceedings and certain contractual transactions, like the form generally used at common law ( Albertson v. Halloway, supra), is what was known as a double or conditional bond, affixing a penalty and containing a condition in the nature of a defeasance, that if the obligor does or forbears to do some act the obligation shall be void, the common law also recognized as a specialty a bond, "called a single one, simplex obligatio," executed with the two essential requirements of sealing and formal delivery incidental to specialties, but without a defeasance clause. 1 Cooley's Blackstone (4th ed.), 705; 8 Am.Jur. 708, § 2; 11 C. J. S. 398, § 1, and cit.; 9 C. J. S. 7, § 1; Words Phrases, 831; Black's Law Dictionary; Bouvier's Law Dictionary; 1 Abbott's Law Dictionary, 157.
( c) As to what sealed instruments with formal delivery, besides promissory notes, should be excluded as not coming within the definition of a single-bond specialty, it is not necessary to decide, and it is not here decided; nor is it necessary, under the facts of this case, to formulate what sealed instruments with formal delivery should be included within the definition of a single-bond specialty, other than to observe that the rule relating to such specialty bonds has been recognized as applying to instruments creating and establishing "a gift of money [payable] in futuro." Lacey v. Hutchinson, 5 Ga. App. 874 (supra); Aller v. Aller, 40 N.J.L. 446, 450, 451; Page v. Trufant, 2 Mass. 158, 161; 26 L.R.A. 308, notes; 63 A.L.R. 540, 542, and cit.; 12 R. C. L. 937, § 14; 28 C. J. 637, § 26.
( d) Accordingly, an instrument such as is here sued on, which is not a mere unconditional promise to pay a certain sum at a definite date, but which by its terms creates and establishes a gratuity payable in futuro, and which obligates the promisor, her "estate, heirs, executors, administrators, and assigns," as was formerly stated in common-law bonds (1 Cooley's Blackstone, 4th ed., 705, 677), to pay the gratuity as thus created in specified amounts at times provided, and which obligation is executed under seal, recites delivery and acceptance by the promisee, can not be construed as a mere sealed promissory note, but measures up to the standard and contains all of the earmarks and requirements of a common-law bond or like instrument recognized at common law as a specialty, and creating a gift payable in futuro. Especially is this true where such execution is duly attested, and the fact of delivery is formally acknowledged before an authorized officer of the State of execution, even though these additional formalities might not be essential to render the instrument a common-law specialty. As such a specialty, it was not subject to the defense of want of consideration.
( e) The decision in Ball v. Wallace, 32 Ga. 170 (2), 172, is not authority against the validity of an executory gift by a specialty. In that case the paper was not sealed, nor did it otherwise conform to the requirements of a common-law specialty; but the gift was enforced on the theory that it was "an executed and not an . . executory one." Nor is there anything to the contrary in Helmer v. Helmer, 159 Ga. 376 ( 125 S.E. 849, 37 A.L.R. 1137); Rogers v. Carter, 177 Ga. 605 ( 170 S.E. 868); or Brown v. Nichols, 23 Ga. App. 569 ( 99 S.E. 57), where the gifts were held ineffectual by reason of the absence of any actual or constructive delivery of the article or chose in action, and there was no instrument to support the gift conforming to the requirements of a commonlaw specialty.
( f) The ruling here made, that the character of the instrument sued upon, conforming, as it does, to the requirements of a common-law specialty, dispensed with the necessity for a consideration, renders it unnecessary to go to the extent of the observation made by Judge Cobb in Sivell v. Hogan, 119 Ga. 167 (supra), that the presence of a seal in a mere promissory note precludes the defense of absence of consideration, or to go as far as the holding in that case may perhaps have gone with regard to the mere sealed executory contract of sale actually before the court, that "the question of want of consideration was [not] open to examination by either party," and that any evidence as to a want of consideration was immaterial because of the mere presence of the seal.
5. Where a petition in the superior court seeks both legal and equitable relief, under our uniform-procedure act, "the legal branch of the case should be controlled as far as possible by the legal principles which would have applied had it been the basis of a separate proceeding" at law. Bentley v. Crummey, 119 Ga. 911 (2) ( 47 S.E. 209). The petition seeks a general judgment at law on the instrument, and does not pray for specific performance (Code, § 37-804), or other direct equitable relief to enforce or to forestall a defense against the validity of the obligation; and since the injunctive relief sought as to the assets of the defendants is merely incidental to the relief sought at law, and since the defense of want of consideration, raised by demurrer, does not itself invoke any equitable remedy or principle, the legal rules governing such a defense must be given application, with the result that the attack on the ground of want of consideration will not avail. This is true, irrespective of whether or not, "in the case of a specialty, no consideration is necessary to give it validity, even in a court of equity." See Rutherford v. Executive Committee of the Baptist Convention, 9 Ga. 55 (supra); Smith v. Smith, 36 Ga. 184, 190, 91 Am. D. 761; Chitty on Contracts (17th ed.), 7.
6. The specialty here sued on coming within the twenty-year period of limitation provided by the Code, § 3-703, and the averments showing that the obligation was an entire one, with the first of the ten agreed annual payments falling due in 1927 and the last in 1936, the fact that the petition was not filed until 1939 did not render it subject to demurrer on the ground that the suit was barred by unreasonable delay and laches, even though the obligor of the instrument died in 1924, and the executor completed the disbursement of assets to the defendants and others in 1932, without the filing of any claim by the petitioner against the estate or any payment to her. See Code, § 113-1506; Redd v. Davis, 59 Ga. 823, 829; Wynn v. Bryce, 59 Ga. 529 (2); Benton v. Roberts, 41 Ga. App. 189 ( 152 S.E. 141); Glass v. Grant, 46 Ga. App. 327 ( 167 S.E. 727).
7. Under the preceding holdings, the court properly overruled the demurrers to the petition, even though one erroneous reason for the decision was stated, that the contract was supported by a sufficient moral consideration, rather than the reason as here decided, that the contract, conforming to the requirements of a common-law specialty, required no consideration. Judgment affirmed. All the Justices concur, except Duckworth, J., who dissents.
ATKINSON, P. J., and BELL, J., concurring specially. Whether or not the instrument in question is of such form and character that it may be properly classed as a common-law specialty, and whether it shows a valuable consideration upon its face, it does not affirmatively negative such; and being under seal, a consideration is prima facie presumed. Nothing else appearing, the petition stated a cause of action, and the judge properly overruled the demurrer to the petition.