32 S.E.2d 507 | Ga. | 1944
1. The petition, filed November 30, 1943, showing on its face that the defendant, on December 28, 1932, entered into possession of the land as a purchaser for value under a deed purporting to convey to her the absolute title thereto, and that she had been in possession of the property ever since, receiving the rents and profits therefrom, and no facts being revealed to negative any of the presumptions arising from the foregoing recitals, it was, as to the complainant, Mrs. Ada Gurr, erroneous to overrule a general demurrer thereto, on the ground that, as to her, the defendant had acquired a prescriptive title.
2. The other complainants, being remaindermen the enjoyment of whose rights were in abeyance so long as Mrs. Ada Gurr, the life-tenant, was in life, showed no present interest in the subject-matter of the suit, and were not entitled to call on the tenant in possession for an accounting, nor for any of the other relief sought.
3. The courts of this State are not empowered to enter merely declaratory judgments. The fact that the petition contains a prayer that the complainants' title be established as superior to that of the defendant does not bring the case without the rule as to declaratory judgments. It was erroneous to overrule the demurrer to the petition so far as the remaindermen were concerned.
4. When a debtor executes and delivers to a creditor bank a deed to secure notes, embodying therein a power of attorney, empowering the creditor, its agent or legal representative, if the debt is not paid at maturity, to sell at public outcry the property described in the deed, *494 and the creditor bank transfers and assigns without recourse to a third party the notes referred to, upon his paying to the bank the balance due thereon, and also conveys to him the property named, together with all the rights, powers, and privileges which the bank held under and by virtue of the notes and deed aforesaid, and in such last-named conveyance constitutes and appoints such third party the agent of the bank for the purpose of exercising any and all powers contained in said security deed, and the debt remaining unpaid, a sale of the property by such third person as agent of the bank, conforming in all other respects to the stipulations and provisions contained in the power, was a valid exercise thereof and passed to a purchaser thereat the title of the grantee to the land included therein.
The advertisement under which the land was sold was as follows:
"T. B. Raines, agent of the City National Bank, attorney in fact for Mrs. Ada Gurr, executrix of the estate of J. W. Gurr, and Mrs. Ada Gurr individually.
"R. R. Jones, atty. for T. B. Raines."
Paragraph 9 of the petition is as follows: "Plaintiffs show that T. B. Raines, purporting to act as agent of the City National Bank of Dawson, Ga., did expose for sale under the power the land contained in the security deed to the City National Bank of Dawson, and under and by virtue of said purported sale did make a deed to defendant, Mrs. Helen G. Gurr, a copy of which is hereto attached marked Exhibit `D,' and hereby made a part of this petition."
Said last named deed was as follows: "This indenture made and entered into this the 27th day of December, 1932, between T. B. Raines as agent of the City National Bank of Dawson, Georgia, the attorney in fact for Mrs. Ada Gurr as executrix of the estate of J. W. Gurr, deceased, and Mrs. Ada Gurr individually, and Mrs. Helen Gurr, both of Terrell County, Georgia, witnesseth: That, whereas, Mrs. Ada Gurr, as executrix of the estate of J. W. Gurr, deceased, and individually, did on the 10th day of December, 1928, make and execute one certain security deed to the *498 City National Bank of Dawson, Georgia, which deed is recorded in the office of the clerk of the superior court of Terrell County, Georgia, in deed book BB, at page 30, for the purpose of securing the payment of two certain notes, fully described in said deed; and whereas, the said City National Bank of Dawson, Georgia, did on the 30th day of October, 1931, transfer and assign the notes described in said security deed to T. B. Raines, and made and executed a deed of assignment on the same date to the said T. B. Raines, in which deed the said bank transferred and conveyed the property described in said security deed unto the said T. B. Raines, and appointed the said T. B. Raines its agent for the purpose of exercising the powers contained in said security deed, which said deed of assignment is recorded in the office of the clerk of the superior court of Terrell County, Georgia, in deed book CC at page 423; and whereas, the said security deed provided that, if the debt thereby secured was not promptly paid at maturity, that the said City National Bank, or its agent or legal representative, would be authorized to sell at public outcry before the courthouse door in the County of Terrell, to the highest bidder for cash, all the property described in said deed to pay said debt, and the expenses of said sale, after advertising the time and place and terms of said sale in any newspaper published in Terrell County, once a week for four weeks, prior to the date of said sale; and whereas, the balance of said debt secured by said security deed in the amount of $832.62, with interest thereon from October 30th, 1931, remained unpaid after its maturity, and the said T. B. Raines, the owner and holder of the notes described in said security deed, and as the agent of the City National Bank of Dawson, Georgia, under and by virtue of the deed of assignment aforesaid, and under and by virtue of the powers contained in said security deed, advertised said property described in said security deed for sale in the Dawson News once a week for four weeks, prior to the date of said sale, said advertisement appearing in said paper on dates of December 1st, 8th, 15th, and 22d 1932, which advertisement stated the time, place, and terms of said sale, all in conformity with the powers contained in said security deed; and whereas, on the 27th day of December, 1932, within the legal hours of sale, before the courthouse door in Terrell County, Georgia, at the time and place named in said advertisement, the said T. B. Raines, as agent aforesaid, *499 exposed said property for sale to the highest bidder for cash, when the same was knocked off to the said Mrs. Helen G. Gurr, at and for the sum of one hundred ($100.00) dollars, she being then and there the highest and best bidder for said property. Now, therefore, the said T. B. Raines as agent for the City National Bank of Dawson, Georgia, the attorney in fact for Mrs. Ada Gurr as executrix of the estate of J. W. Gurr, deceased, and Mrs. Ada Gurr individually, under and by virtue of the powers contained in said security deed, for and in consideration of the sum of one hundred ($100.00) dollars cash in hand paid, the receipt whereof is hereby acknowledged, does hereby sell, transfer, and convey unto the said Mrs. Helen G. Gurr, her heirs and assigns, the following described property, to wit: The whole of lot of land No. 95 in the 11th land district of Terrell County, Georgia, containing 202 1/2 acres, more or less. To have and to hold said described property unto the said Mrs. Helen G. Gurr, her heirs and assigns forever, in fee simple, subject, however, to the rights of the holder of that certain deed to secure debt dated February 2d 1924, and recorded in the office of the clerk of the superior court of Terrell County, Georgia, in deed book Y, at pages 513-14, said deed being from Mrs. Ada Gurr, as executrix of the estate of J. W. Gurr, deceased, and Mrs. Ada Gurr individually, to the Atlanta Joint Stock Land Bank, and subject to all unpaid taxes on said land. In witness whereof, the said T. B. Raines as agent for the City National Bank of Dawson, Georgia, the attorney in fact for Mrs. Ada Gurr as executrix of the estate of J. W. Gurr, deceased, and Mrs. Ada Gurr individually, has hereunto set his hand and affixed his seal, the day and year first above written." This deed was duly executed by T. B. Raines, "as agent for the City National Bank of Dawson, Georgia, the attorney in fact for Mrs. Ada Gurr as executrix of the estate of J. W. Gurr, and Mrs. Ada Gurr individually."
It was alleged that the note which was secured by the deed to the City National Bank was transferred and assigned to T. B. Raines without recourse. The property was advertised as set forth in the deed made by Raines as agent to Mrs. Helen G. Gurr, and the sale was had in accordance with said advertisement. The suit was by Mrs. J. W. Gurr Sr. (Mrs. Ada Gurr) and the children of J. W. Gurr Sr. against Mrs. Helen G. Gurr; and in addition to *500 what appears above, paragraphs 11, 12, 13, 14, 15, 16, 17, and 18 of the petition are as follows: "11. That said deed from T. B. Raines, as agent of the City National Bank of Dawson, to defendant is void and of no legal effect. 12. Plaintiffs show that defendant entered into possession of said property about December 28, 1932, and has been in possession of said property ever since said time receiving the rents and profits therefrom. 13. Plaintiffs show that under facts heretofore alleged defendant's possession has been under and by virtue of the security deed from Mrs. Ada Gurr (Mrs. J. W. Gurr Sr.) to the City National Bank of Dawson, Ga. 14. Plaintiffs show that, defendant's possession having been under said security deed referred to in the preceding paragraph, her right to possession terminates upon defendant receiving sufficient rents and profits from said property to pay in full the principal and interest due on said security deed, and plaintiffs allege that defendant has received sufficient rents and profits to pay in full the amount due on the security deed given to the City National Bank of Dawson, Ga. 15. Plaintiffs show that, if defendant has not received sufficient rents and profits to pay in full the amount due on the security deed given to the City National Bank of Dawson, they stand ready and willing to pay same and now tender whatever amount may be due to defendant or into this court. 16. Plaintiffs allege that, in view of the relation existing between the parties, there should be an accounting in order to determine if there is any amount due defendant, and if so, what amount. 17. Defendant, Mrs. Helen G. Gurr, is a person who is feeble-minded and incapable of handling her property, or of understanding and protecting her legal right, and therefore a guardian ad litem should be appointed for her in this litigation. 18. The executrix of the estate of J. W. Gurr Sr., to wit, Mrs. J. W. Gurr Sr. (Mrs. Ada Gurr), consents to and joins in this suit."
The prayers were: "(a) That plaintiff, Mrs. J. W. Gurr Sr. (Mrs. Ada Gurr), be declared to have a life estate in said property superior to any claim, right, or title in said property of defendant; (b) that the remaining plaintiffs be declared to have a remainder interest in said property superior to any claim or interest of defendant; (c) that the deed from T. B. Raines, agent of the City National Bank of Dawson, be declared null and void; (d) that *501 defendant be required to account to plaintiffs for all rents and profits received from said property, and if upon an accounting there is found any amount due defendant, that upon the payment of same, or if it is found that defendant is not due anything, then the defendant be adjudged not entitled to any further possession, right, or use of said property. If upon an accounting it is found that defendant is indebted to plaintiffs, or any of them, that judgment be rendered for said amounts. (e) For such other and further relief as to the court may be deemed meet and proper. (f) That process issue."
A demurrer was interposed to the petition as amended, asking that the same be dismissed on the following grounds: "1. That the petition, as to each and all of the plaintiffs, sets forth no legal or equitable cause of action. 2. That the petition shows that the alleged cause of action, if any, is barred by the statute of limitations, in that it appears that more than eleven years elapsed from the date of the deed attached to plaintiffs' petition — Raines's deed to defendant — and the date of the filing of the petition, and that during said time defendant was in continuous possession of the land described in said deed, and it not appearing that any of the plaintiffs during said time were laboring under any legal disabilities. 3. Defendant demurs to paragraph 11 of plaintiffs' petition, for the reason that the same sets forth a mere conclusion of the pleader, there being no facts in said petition to authorize the same. 4. Defendant demurs to paragraph 13, as amended, of plaintiffs' petition, for the reason that said paragraph sets forth a mere conclusion of the pleader, there being no sufficient facts in the petition to authorize said conclusion. 5. Defendant demurs to paragraph 14 of plaintiffs' petition, for the reason that said paragraph sets forth mere conclusions of the pleader, without setting forth facts sufficient to justify such conclusions." The judge overruled the demurrer, and Mrs. Helen G. Gurr excepted.
1. The petition, filed November 30, 1943, shows that Raines, as agent for the bank, on December 27, 1932, by absolute deed, which was recorded on January 7, 1933, purported to convey for a valuable consideration to Mrs. Helen G. Gurr the title to the lot of land here involved; that on the following day she entered into possession of said property, and has since *502
been in possession of the same, receiving the rents and profits therefrom. Under the facts as they thus appear, her possession is presumed to be adverse until the contrary is shown. Hall v.Gay,
2. Of the several complainants, Mrs. Gurr was a life-tenant; the others were remaindermen. So long as the former lives, the latter have no right to bring this suit for an accounting with the party in possession, nor for any of the other relief sought. They must stand by during the life of the life-tenant. Schley
v. Brown,
3. The courts of this State are not empowered to enter merely declaratory judgments. Southern Railway Co. v. State,
4. A reversal of the judgment necessarily follows from the rulings already announced. To end the decision here, however, would leave undecided an important question arising under this record, which was stressed in the oral argument and in the briefs, and one which in all probability will arise again out of this same controversy. The complainants base their right of action on the proposition that the sale of this property under the power passed no title. The purchaser, who is the plaintiff in error here, insists that by virtue of that sale she acquired title. We have ruled in divisions 1 and 2 only that, as against the life-tenant, the purchaser has acquired a prescriptive title, and that the remaindermen have no right to sue so long as the life-tenant is living. In this situation, prescription did not ripen into title as against them (Mathis v. Solomon,
While the advertisement under which the land was sold recited that Raines would sell it as assignee of the indebtedness secured by the deed and the holder of the title to the property described therein, and as agent of the said City National Bank by virtue of the assignment aforesaid, the advertisement was signed "T. B. Raines, agent of the City National Bank, Attorney in fact for Mrs. Ada Gurr, executrix of the estate of J. W. Gurr, and Mrs. Ada Gurr individually." His deed to Mrs. Helen G. Gurr was signed in exactly the same way, and the other recitals in the deed are to the same effect. No power of sale was given to the holder of the indebtedness, whoever he might be, nor to the creditor and his assigns, as was done in Universal Chain TheatricalEnterprises Inc. v. Oldknow,
The court has held that a power of sale in a security deed is a power coupled with an interest. Lewis v. King,
It was ruled in Garrett v. Crawford,
128 Ga. 519 (57 S.E. 792 , 119 Am. St. R. 398, 11 Ann. Cas. 167), that, while a power of sale *506 in a mortgage is extinguished by the payment of the debt which the mortgage was given to secure, if the mortgagor failed to have the satisfaction of the debt entered of record, and a sale was thereafter had under the power, one who purchased in good faith and for value at such sale, without notice of the fact of the satisfaction of the debt, will be protected in his title. The decision in that case was put upon estoppel, and on its facts is not on all fours with the instant case. The interest with which the power was coupled ceased; the debt having been paid, in reality there was no default; but one who bought at the sale under the power was protected in his title.
The case of Ellis v. Ellis,
Smith v. Pharr,
In Phelps v. Palmer,
In Hunt v. New England Mortgage Security Co.,
It will be readily conceded that none of these cases are decisive of the precise point here presented. It is submitted, however, that some of them, at least, can not without difficulty be reconciled with the contention of the complainants that whenever the grantee parts with title to, i. e., his interest in the subject-matter, he can not thereafter exercise the power of sale through the transferee of the debt and of the title to the property, as the agent of the original creditor and donee of the power.
A power of sale may lawfully reside in one who has no legal or equitable interest in the property which is to be the subject-matter of the sale. This has been frequently decided by the courts of this State, and the proposition was restated inSmith v. Pharr, supra. If this be true, then how can it be that the power of sale in the case at bar was illegally exercised by the grantee of the power after it had parted with its interest in the subject-matter, merely because of that fact?
A power of sale in a mortgage or security deed becomes a part of the security, conferred for the purpose of effectuating the same. Mutual Loan Banking Co. v. Haas,
It was said in Garrett v. Crawford, supra: "That portion of the mortgage containing the power, like all other contracts, is to be construed so as to effectuate the intention of the parties, and *510 the power must be exercised in accordance with the intention of the parties as indicated in the clause in the mortgage conferring the power. The power is conferred for the purpose of enabling the mortgagee to collect his debt. When the debt has been paid, as between the mortgagor and the mortgagee the power is extinguished." The quoted clause does not say that the power is conferred to enable the mortgagee to collect his debt "from the mortgagor."
It will be conceded that powers of sale such as these should be strictly construed. Code, § 37-607. There was a strict compliance with the terms of the power. They were followed literally. On default, the donee of the power, through an agent, as the parties had agreed might be done, advertised and sold the property. Nothing was said in the grant of the power that it could be exercised by the donee or its agent only so long as the donee itself remained a creditor of the donor. It contained no provision that the power would be revoked whenever the creditor transferred the debt and assigned its interest in the security deed and its right, title, and interest in the property to a third person who had paid the balance due thereon. To give it the construction contended for by the defendants in error would be to supply a meaning not expressed by the words employed, and to read into it a limitation that goes beyond the language used. Construing the power strictly, and giving heed to the rule just stated, there was, in the judgment of this court, a lawful exercise of the power of sale, and, under the facts set forth in the petition, Mrs. Helen G. Gurr obtained a valid title to the land in question.
Judgment reversed. All the Justices concur.