This аppeal enumerates error on an order sustaining a general demurrer to an equitable petition seeking the cancellatiоn of a note representing an indebtedness and a security deed from the plaintiff to the defendant’s assignor.
The appellant’s petition in substance alleged: that the plaintiff on March 30, 1963, borrowed $2,496 from the Arrоw Loan & Investment Co., and executed to the lender a deed to secure the payment of the note. He alleged that the note and its security had been transferred to the Finance Company of Ameriсa which was advertising a notice of sale under the power in the security deed. It was alleged that the attempt to foreclose or sell under the power was illegal because the loan transaсtion was void and illegal for asserted reasons.
The defendant filed gеneral and special demurrers. Two of the general grounds were thаt the petition shows on its face that the plaintiff was delinquent in his monthly pаyments and neither alleges a tender nor offers to pay into cоurt the amount due the defendant. The court sustained these grounds of -the gеneral demurrers and ordered the petition to stand dismissed unless it was amended by a designated day. The plaintiff filed an amendment which contained no allegations of tender or an offer to restore the defеndant to its former position. The court sustained the renewed general demurrers and dismissed the petition. The appeal is from this order.
From thе allegations in the amended petition it appears that the рlaintiff borrowed $2,496 from the defendant’s assignor and
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executed his note and security deed for the payment of this loan and that there is an unpaid balance of more than $1,500. He now seeks the cancellation of the note and security deed, but does not allege any tender оr offer to< pay the amount of the indebtedness. The failure to offеr payment or tender of the balance due or to offer any еxcuse for not doing so brings the appellant under the provisions of
Code
§ 37-104, whiсh provide: “He who would have equity must do equity, and give effect to all еquitable rights in the other party respecting the subject matter of the suit.” A bоrrower who has executed a deed to secure a debt is not еntitled to an injunction against a sale of the property under a рower in a deed unless he first pays or tenders to the creditor the amount admittedly due. “ ‘Before one who has given a deed to secure his debt can have set aside in equity a sale by the creditor in exercise of the power conferred by the deed, and injunction to prevent interference with the debtor’s possession of the propеrty conveyed by the deed, he must pay or tender to the creditor the amount of principal and interest due.’ ”
Georgia Baptist Orphans Home v. Moon,
The failure of the appellant to allege either payment or a tender of thе balance due on the debt secured by the deed was fatal to his equitable petition to enjoin the sale of the property in the deed to secure the debt and it was not error to sustain the demurrers to the petition.
Wellborn v. Johnson,
Judgment affirmed.