dissenting. I am of the opinion that the court erred in- overruling the appellants’ motion to dismiss the complaint.
It seems to me that our courts sometimes take too quick and unanalytical glances at complaints which should be dismissed because of allegations which foreclose relief sought. When the complaint contains such allegations it has to be judged in the appellate court where no amendment has been filed eliminating the allegations which would prevent the relief sought. The case of Hunter v. A-1 Bonding Service, 118 Ga. App. 498 (164 SE2d 246) and what happened after this court denied certiorari, should put in bold relief what can happen when the principle above stated is not strictly applied. After this court denied certiorari, the plaintiff in that case amended his complaint by striking the allegation which the dissenting judges thought precluded recovery. That action gave the plaintiff an unconscionable advantage and made possible a recovery which never should have occurred. The plaintiff in this case is not entitled to any relief sought against the appellants. That is all we have in this case for decision on this appeal. There is absolutely nothing upon which a claim against Mrs. Gill can be predicated. She has not been accused of any wrongdoing. She has not been accused of making a mistake. There is no *263reason why she should forego her right to foreclose her security deed, especially when she has not been tendered the full amount of the balance due her plus interest and attorney’s fees, if any, and in the absence of a failure of the plaintiff to tender into court an amount which will satisfy Mrs. Gill’s deed to secure debt in full. There is no claim stated against the Bank. All the Bank is charged with is representing to the loan association, which was an agent and representative of the plaintiff in distributing the proceeds of the association’s loan to the plaintiff, that the balance due on the Williams security deed to Mrs. Gill was less than the amount in fact due. The harm done, if any, to the plaintiff in this case, was due solely to the negligence of the plaintiff, his attorney and his agent, the loan association, in failing to have in their hands for cancellation the deed from Williams to Mrs. Gill. At the closing of a loan under the circumstances of this case, the parties representing the parties to the loan by the association should have had in their hands for cancellation the security deed from Williams to Mrs. Gill. If any effort had been made to do this simple act, it would have been discovered that Mrs. Gill had not been paid in full and that the association was not justified in gambling pn whether it could get the cancellation on its terms or not. The negligence above described, was the sole proximate cause of whatever harm was done the plaintiff. Such negligence would even preclude any fraud alleged against the bank and Mrs. Gill. Authorities for this proposition are too numerous to cite.