180 Ga. 714 | Ga. | 1935
J. F. Cocke Jr., J. E. Cocke, C. D. Cocke, S. M. Cocke, and Mrs. J. B. Hoyl filed a suit against the Bank of Dawson, to enjoin the sale of described real estate situated in Terrell county and known as the Marlin place, which the bank was advertising and proposing to, sell in accordance with a security deed with a potver of sale claimed by it to have been executed by two of the plaintiffs in behalf of themselves personally and in behalf of the others as attorneys in fact. The judge refused an interlocutory injunction, and the plaintiffs excepted.
The following facts appeared from the pleadings and the evidence: Plaintiffs were the heirs at law of J. F. Cocke Sr., who died intestate in the year 1928, seized of the lands in question. On December 31, 1928, three of the heirs, Mrs. Hoyl, S. M. Cocke,
In their petition the plaintiffs made the following contentions: (1) Petitioner J. P. Cocke did not execute the power of attorney, and did not sign or execute the security deed; and for this reason the proposed sale would be void as to him. (2) The power of attorney was addressed both to C. D. Cocke and J. P. Cocke as joint attorneys in fact, and did not authorize the execution of a security deed by C. D. Cocke alone as attorney in fact. (3) The power of attorney was insufficient in law to authorize the execution of any security deed, granting no specific authority and power to execute such an instrument. (4) It did not authorize the signing of a security deed which included a power of sale, and the deed amounted to the personal act of O. D. Cocke only. (5) Finally, the advertisement was insufficient, in referring to the property as that of the “J. F. Cocke estate.” The petition alleged that for these reasons the security deed was null and void and the contemplated sale would also be void. The bank contends, among other things, that while the deed was signed only by C. D. Cocke, the note was executed both by him and J. F. Cocke, these being the persqns named as attorneys in fact, and that in view of the recital contained in the note with reference to this land the security deed should be considered as having been executed by both of the attorneys in fact, and should be treated in equity as the deed of all the plaintiffs. Also, the answer of the bank was introduced in evidence, and contained the following allegation: It was the intent and purpose of the heirs of J. F. Cocke Sr. to keep the estate together
The contentions made in the briefs expanded to some extent the express averments of the petition, but not those impliedly made therein. Accordingly, each question discussed in the briefs will
WSen the security deed is considered as a whole, it does not appear to be the personal act of C. D. Cocke alone, nor when the deed and the note are taken together can it be said that the entire contract, as thus constituted, should be construed as a conveyance only by C. D. Cocke and J. F. Cocke as individuals. “An instrument signed by one as agent, trustee, guardian, administrator, executor, or the like, without more, shall be the individual undertaking of the maker, such words being generally words of description.” Code of 1933, § 4-401. But this was not an instrument signed by C. D. Cocke and J. F. Cocke as attorneys in fact, without more. The language of the deed, and all of it must be considered. Also the attendant circumstances may be proved. Code of 1933, § 20-704, par. 1. A deed may be valid as against one who signs and delivers it, although he is not designated in the body of the deed as grantor. Sterling v. Park, 129 Ga. 309 (58 S. E.
The language of the power here involved has been noted in the foregoing statement, and we think it was sufficient to authorize the execution of the security deed in question. In Fletcher v. American Trust & Banking Co., 111 Ga. 300, 302 (36 S. E. 767, 78 Am. St. R. 164), it was said: “It is a well-recognized principle of law, that where power is given to raise or borrow money, the power to secure the loan is necessarily implied. The will having given power to the executor to raise money to pay the debts of the estate, he had also the power to secure the loan by deed or mortgage. Otherwise, he might have been unable to successfully execute the power expressly given him by the will. The executor had, therefore, not only the power to raise money for the purpose of paying the debts of his testatrix, but also the power to secure the loan by deed or mortgage.” See also Touchstone v. Gormley, 178 Ga. 130, 134 (172 S. E. 335). It is not a valid objection that the security deed and note were sealed instruments, the power of attorney having been executed under seal and having conferred express authority as to a class of transactions which included these instruments. The present case differs on its facts from cases like Born v. Simmons, 111 Ga. 869 (36 S. E. 956); Exchange Bank v. Thrower, 118 Ga. 433 (45 S. E. 316); United Leather Co. v. Proudfit, 151 Ga. 403 (107 S. E. 327); Harp v. First National Bank, 173 Ga. 768 (2) (161 S. E. 355); Hargrove v. Armour Fertilizer Works, 31 Ga. App. 465 (120 S. E. 800).
What is said in the preceding division is not altered by the fact that the security deed contained a power of sale, nor by the further fact that in conveying the legal title it necessarily waived the right of homestead. One having power to execute a security deed has the incidental authority to include such terms and conditions as are usually inserted in such instruments, including the power to sell in case of default; and the power to execute such a
The rulings stated above will dispose of all contentions adversely to the plaintiffs in error, except that concerning the advertisement. Upon that question we are constrained to hold that the judge should have granted an injunction. The advertisement did not state sufficient facts to show a valid security deed. The advertisement referred to the deed as having been made by “J. F. Cocke estate by its attorneys in fact,” without otherwise identifying the grantors, or even showing a legal entity as grantor. It did not show that the deed had been recorded, or who were the attorneys in fact. In the circumstances, a prospective purchaser in the exercise of ordinary prudence should have had a doubt as to the validity of the proposed sale, and might have been deterred from buying. There was nothing to indicate a valid security deed, such as it finally appeared to be under the facts disclosed at the hearing for injunction. A power of sale in a security deed must be fairly exercised; and from the language of this advertisement, without more, it appeared that the security deed was void for the want of a legal grantor. The sale might have been chilled by this circumstance, and it should have been enjoined until better advertised. Code of 1933, § 37-607; Sims v. Etheridge, 169 Ga. 400 (4) (150 S. E. 647); Plainville Brick Co. v. Williams, 170 Ga. 75 (2) (152 S. E. 85); Penn Mutual Life Ins. Co. v. Donalson, 177 Ga. 84, 90 (169 S. E. 337). The case is different from Universal Chain &c. Inc. v. Oldknow, 176 Ga. 492 (2) (168 S. E. 239), as will be readily seen upon examination of that case.
Judgment reversed.