168 Ga. 327 | Ga. | 1929
On July, 27, 1921, Moses Blumenfeld executed and delivered to the Mercantile Bank & Trust Company his deed to certain described land to secure debt. In' February, 1922, this deed was transferred by assignment to his wife, Frances Blumenfeld. This transfer was not recorded. This instrument contained a power of sale, which was to be exercised by a trustee appointed by the grantee therein. The transferee appointed a trustee for this purpose, and he advertised this property for sale under said power. On March 19, 1924, Moses Blumenfeld executed to the Citizens Bank & Trust Company his deed to the same property to secure an indebtedness of $3200. This deed contained a power of sale, to be executed by a trustee to be appointed by the grantee therein. The grantor defaulted in his payments of this debt, and the grantee appointed a trustee who advertised the property for sale. The grantor filed his petition against the grantee and his trustee, in which he sought to enjoin said sale and to have said deed canceled upon the ground that the consideration for the debt thereby secured had totally failed. On the hearing an interlocutory in
The Citizens Bank & Trust Company filed its petition against Frances Blumenfeld and her trustee, in which it sought to enjoin them from selling this property under the power of sale contained in the deed from Moses Blumenfeld to the Mercantile Bank & Trust Company, under which she claims as transferee of said deed and the debt thereby secured. In its petition it alleged that it had no notice of any claim of the wife to said property; that her title is inferior to its title, because it made said loan to her husband in good faith, relying upon his security deed to it; that the wife, at the time it made said loan, knew that it was making it upon the strength of the conveyance of said property; that she understood that it was to receive a first security deed to said property of equal rank with one made to the Liberty Bank & Trust Company; that on March 7, 1928, she filed a suit seeking specific performance of a contract made by her and her husband and the Liberty Bank & Trust Company and petitioner, whereby the former company and petitioner were to lend to the husband $8,000, taking a first mortgage on the property embraced in his deed to the Mercantile Bank & Trust Company, the Liberty Bank & Trust Company to advance $4800, and petitioner to advance $3200; that petitioner did lend $3200 to Moses Blumenfeld, and received, in accordance with the terms of said contract, what purported to be a first mortgage on the property embraced in the security deed, which property the wife claims, and a second mortgage on the home of her husband; that the wife is estopped from now setting up that, by reason of the unrecorded transfer of said security deed under which she claims, and which is canceled of record, she is entitled to a superior title to that of petitioner; that the property involved is in the hands of the court through its receiver, and the proposed sale would -interfere with the possession of the court of this property. Petitioner prayed
In answer to this petition the wife alleged that the cancellation of the security deed under which she claims was made without her authority, knowledge, or consent, and without authority of law, in that said deed was not presented to the clerk at the time he entered said cancellation thereon. She denied that this bank had no notice of her claim to said property. She further alleged that the giving of the mortgage to the Liberty Bank & Trust Company on February 15, 1924, which mortgage was paid on April 9, 1924, was made at petitioner’s request, with the understanding that the above deed held by her as transferee should not be disturbed. She denied that her right or title was inferior to that of petitioner, or that she understood that petitioner was to receive a first security deed on said property. She admitted that she filed the suit for specific performance. She further set up that she paid the Mercantile Bank & Trust Company full consideration for the transfer of the deed under which she claims; that the Mercantile National Bank of Savannah knew, when it was attempting to have said deed canceled, that it did not have possession of it, that it had been transferred to her, that it had no right, title, or interest in and to the same, and that its cancellation was at the instance of petitioner.
The case was heard on the petition and answer, without other evidence. The judge temporarily enjoined the defendant as prayed, and granted an order making Frances Blumenfeld a party to the case of Moses Blumenfeld against petitioner. The defendants excepted.
The first question for decision is this: Can the transferee of a security deed advertise and sell under a power of sale therein the land thereby conveyed, when such land is in the hands of a receiver in a proceeding to which such transferee is not a party? It is well settled that the custody of property by the receiver of the court is the custody of the court, and that one who dispossesses the receiver of property in his hands, or disturbs his possession, dispossesses and disturbs the court, is guilty of contempt, and the property, in case of dispossession, will be restored to the receiver.
It has been held that a sale by a trustee under power contained in the trust deed confers no title upon the purchaser, when the property embraced in such deed has been placed in the hands of a receiver prior to such sale. Hitz v. Jenks, 185 U. S. 155 (22 Sup. Ct. 598, 46 L. ed. 851); Scott v. Crawford, 16 Tex. Civil App. 477 (41 S. W. 697); Hacker v. Hacker (Tex. Civ. App.) 4 S. W. (2d) 218. Upon like principle, a power of sale in a security deed can not be exercised where the property embraced in such deed has been placed in the hands of a receiver prior to the attempt to exercise such power. The contention that a sale of the property under such a power would not disturb the possession of the receiver is not well founded. Hitz v. Jenks, supra. When a party is prejudiced by having a receiver appointed and put in his way, his proper course is to apply to the court appointing the receiver for permission to proceed, or to permit him to be examined pro interesse suo. Brooks v. Greathed, 1 J. & W. 176, 37 Eng. Rep. (Reprint) 342, Chancery Book 17. The rule seems to be well settled that where the subject-matter of the suit in equity is real estate which has been taken into the possession of the court pending litigation, by the appointment of a receiver, or by sequestration, the title is bound from the filing of the bill; and any purchaser pendente lite, even if for a valuable consideration, comes in at his peril. Anonymous, 6 Ves. Jr. 287; Angel v. Smith, supra; Brooks v. Greathed, supra. So in Weihl v. Atlanta Furniture Co., 89 Ga. 297 (15 S. E. 282), it was held, that, in appointing a receiver to take charge of the assets of an insolvent corporation under a petition in the nature of a creditor’s bill, it was not error for the court to withhold from the receiver assets upon which there were large mortgage liens, even though the value of the assets might be considerably in excess of the amount of the mortgages, provision being made in the
This brings us to consider the second question involved in this case. Did the court err in making Mrs. Blumenfeld a party to the case of Moses Blumenfeld against the Citizens Bank & Trust Company? She insists that the order making her such party is contrary to law and equity. Is this contention sound? The con-, test is between the liens of two security deeds executed by the same grantor to the same property. The wife of the grantor claims under a transfer to her of the senior security deed. This transfer was never recorded. This deed had been- canceled of record by the successor of the grantee therein. The Citizens Bank & Trust Company claims under the junior security deed. The grantee in this deed claims that it took its deed when the senior deed appeared to be properly canceled of record, and when the apparent legal title was in the husband and common grantor. It further ■ contends
If the security deed from Moses Blumenfeld to the Mercantile Bank & Trust Company was properly canceled of record, no reconveyance of the property therein conveyed was necessary to revest title in the grantor. Civil Code (1910), § 3309; Chapman v. Ayer, 95 Ga. 581, 583 (23 S. E. 131); Citizens Bank v. Taylor, 155 Ga. 416 (3) (117 S. E. 247). Was this deed properly canceled of record, so as to revest title in the grantor? “In all cases where property is conveyed to secure a debt, the surrender and cancellation of such deed in the same manner that mortgages are now canceled, on payment of such debt to any person legally authorized to' receive the same, shall operate to reconvey the title of said property to the grantor, his heirs, executors, administrators, or assigns; and such cancellation may be entered of record by the clerk of the superior court in the same manner that cancellations of mortgages are now entered.” Civil Code (1910), § 3309. “Any mortgagor in this State, who may have paid oil his mortgage, may present the same, together with the order of the mortgagee or transferee directing that the mortgage be canceled and record the order across the face of the record, to the clerk of the superior court of the county or counties in which the same is recorded, and such clerk shall write across the face of such record the word ‘satisfied/ and the date of
But where the entry of cancellation or satisfaction of a mortgage
Equity has general jurisdiction for the enforcement of equitable liens. Among these are the so-called equitable mortgages. 21 C. J. .118, § 96, e. These liens may at any time be enforced in a
It is further insisted that the equity in the plaintiff’s petition was sworn off by the answer, and that in view of this fact the court should have refused to grant an interlocutory injunction. We
Judgment affirmed.