186 Ga. 718 | Ga. | 1938
This was a suit to compel specific performance of a contract to purchase realty, brought by the Trust Company of Columbus against E. B. Cartledge Jr. Cart-ledge’s defense to the action was that the plaintiff did not have a merchantable title. The court sustained demurrers to the answer, and upon hearing the case, by agreement of the parties, without the intervention of a jury, rendered judgment in favor of the plaintiff. To these rulings the defendant excepted.
The answer alleged that the plaintiff’s title was defective, because a certain power of sale, under authority of which a deed in the plaintiff’s chain of title was executed, was contained in a note secured by a deed; that the note and security deed did not definitely identify each other; that the note was not recorded at the time the power of sale was exercised; that after the plaintiff acquired title to the land in question, it had said land registered and received a certificate of registration on February 2, 1937; but that said registration proceeding was ineffectual to cure the defect in the title, as the grantor in the security deed referred to was not named as a defendant in the registration proceedings. No defect was alleged in the registration proceedings, other than the one just stated; and according to the allegations of the answer the plaintiff’s title is good except for the deed made under the power of sale contained in the note referred to. It is alleged: “(a) That on May 2, 1925, Mrs. Nonie Clyde Fournier was the owner in fee simple of the said real estate in question, and had a good and marketable fee-simple title thereto, (b) That on May 2, 1925, the said Mrs. Nonie Clyde Fournier executed and delivered
This note contained a power of attorney authorizing the grantee, upon default in payment thereof, to sell the real estate described in said deed at public outcry; and there is no attack on the language of said power of sale. It is alleged, that on February 2, 1926, the Trust Company of Columbus sold said real estate at public outcry under said power of attorney, and the same was bid in by one Patterson, to whom deed was executed by the plaintiff as attorney in fact of Mrs. Fournier, and on the same day Patterson conveyed the land to the plaintiff; that said deed from the Trust Company of Columbus, as attorney in fact for Mrs. Fournier, is void,-because: (1) Said loan deed from Mrs. Fournier did not contain a power of sale. (2) Although said deed makes reference to the note, agreement, and power of sale contemporaneously executed with it, said deed does not with definiteness identify said note as a part of said deed. (3) Said note does not with definiteness describe the loan deed so that the two instruments may within themselves be identified as one transaction. (4) Said note and power of attorney does not contain a description of the real estate described in said loan deed. (5) Said note and power of attorney contains no provisions sufficient within themselves to describe the indebtedness sought to be secured by said loan deed or to describe the real estate conveyed by said loan deed. (6) It is not possible from an examination of the note, agreement, and power of attorney to ascertain definitely that said instrument is the identical note, agreement, and power of attorney referred to in the loan deed. (7) The note, agreement, and power of attorney was not recorded at the time the power of sale was exercised.
The brief of counsel for the plaintiff in error is divided into two parts, the first headed, “ Sufficiency, identification, and validity of the power of attorney, the deed under power of sale, and the purported sale thereunder,” and the second headed, “ Validity of proceedings to register title under land registration act.” Under
Counsel does not cite any authority to support an affirmative answer to either of the questions asked, but argues: “Now, suppose that Mrs. Fournier, on the same date of the deed and note in question, had executed and delivered another deed and note, on another parcel of real estate, securing a like indebtedness. Now, under those circumstances, the said plaintiff company could use either of the said two notes to foreclose on either of said deeds. How is the defendant, then, to know that the plaintiff company used the note, agreement, and power of attorney intended by Mrs. Fournier? Suppose, further, that the note, agreement, and power of attorney which Mrs. Fournier executed to the plaintiff company on the property in question was revoked by Mrs. Fournier, before the said power therein was exercised. The said power of sale in the note, agreement, and power of attorney would then be void. With such indefiniteness, could any prudent man
We know of no reason why a power to sell real estate, conveyed as security for a debt, can not be contained in an instrument separate from that whereby the title is conveyed as security for the debt. As stated, counsel cites no authority for his position. The power of attorney contained in the note in this ease was executed with the same formality as the law prescribes for the execution of the act for which the agency was created, i. e., in the presence of two witnesses, one of whom was an official witness. Code, § 4-105. The agency was coupled with an interest in the agent, and therefore was not revocable at will, as suggested by counsel. § 4-214. That '“If the power of sale is not recorded prior to the time that the power of sale is exercised and the property is actually sold thereunder, the bidding will certainly
We think the security deed and note containing the power of attorney in this case were subject to the rule that “Where a promissory note is given contemporaneously with a written agreement between the same parties which states the consideration of the note, the two instruments constitute one contract and are to be construed together,” as stated in Montgomery v. Hunt, 93 Ga. 438 (21 S. E. 59), and in Read v. Gould, 139 Ga. 499 (2) (77 S. E. 642);
In view of what has been said, it is unnecessary that any ruling be made as to the attacks on the validity of the proceeding under which the land involved was brought under the Georgia land-registration law. It appearing from the defendant’s answer that, irrespective of the registration proceedings, the plaintiff had a
Judgment affirmed.