115 Ga. 679 | Ga. | 1902
Dwelle & Daniel filed in the superior court their petition against the Blackshear Bank and others, alleging substantially as follows: On the 6th day of January, 1896, J. F. Miles borrowed from the Blackshear Bank a sum of money and gave to the bank his promissory notes for the same, executing and delivering a mortgage upon certain described property to secure the payment of the notes. On the 10th of March, 1898, Miles gave to plaintiffs his promissory notes.for a stated sum, and executed and delivered to them a mortgage upon certain property to secure the payment of these notes, a portion of the property described in the mortgage being the same property as that described in the mortgage to the bank. The bank had knowledge of the execution and delivery of the mortgage to the plaintiffs, and of the fact that it constituted a lien upon the same property as that described in its mortgage. On the 22d day of November, 1898, after Miles had made default in the payment of his debt to the bank, the property described in the mortgage to it was exposed to sale, after, having been advertised in the manner prescribed in the mortgage, and under a power of sale contained in the mortgage the bank, through its duly authorized agent, offered the property for sale at public outcry. The power of sale contained in the mortgage provided that the sale should be had at public outcry “ to the highest bidder for cash.” At this sale the plaintiffs, through their duly authorized agent, were the highest and best bidders, and the property was knocked off to them at the amount of their bid. The agent of the plaintiffs tendered to the bank a draft on plaintiffs for the amount of the bid, which the bank refused to take, notwithstanding plaintiffs had wired it that the draft would be honored. No cash was paid or tendered during the day on which the sale was
Tire power of sale contained in the mortgage to the Blackshear Bank restricted the authority of the bank to a sale for cash only. The plaintiffs as bidders at the sale were bound to inquire into the authority of the bank to sell, and the terms and conditions upon which the salé was to be had. This authority appeared of record,
Judgment affirmed.