97 Ga. 755 | Ga. | 1896
The nature of the instrument involved in this case will appear from the abstract of its contents set forth in the official report.
After a careful examination and consideration of all its provisions, we hold that this instrument was a mortgage, and not a deed; and therefore, even if it was infected with usury, it was not absolutely void, and an exercise of the power of sale contained in it could not, upon that ground alone, be lawfully enjoined. "We do not now decide whether the plaintiffs were, or were not, entitled to an injunction under the evidence submitted. But assuming that they were, the court very properly required, as a condition precedent to the granting of this relief, that they should first pay the principal and interest legally due on the debt secured by the mortgage. This requirement rests upon the time-honored maxim that “He who seeks equity must do equity.” Upon this point, the case of Whatley et al. v. Barker et al., 79 Ga. 790, is controlling; and there would be no difficulty in supporting the doctrine there laid down, by citing additional decisions made by this and other courts, to the same 'effect, if its correctness was a matter of serious question.
Judgment affirmed.
