102 Ga. 812 | Ga. | 1898
The petition of the plaintiff contained allegations of which the following are the material parts: Plaintiff had borrowed from defendant a certain sum of money, and as security for the loan had executed a mortgage conveying certain land. In the conveyance there wras a stipulation to the effect, that, should default be made by the plaintiff in the payment of the loan, the defendant should have the right to advertise the property for sale and sell it without process of law, and that at the sale the defendant might become a bidder and purchaser. The plaintiff has made certain payments on the loan. The value of the land greatly exceeds the original amount of the loan. Upon a default made by the plaintiff in the payment of a balance due upon the debt, the defendant caused the premises to be advertised and sold, and became the purchaser of the premises at the sale. The sale was made under the power in the mortgage, and not under any judicial process. It is alleged that the defendant fails and refuses to account to plaintiff, either for the amounts which have been paid by him on the debt, or for a certain sum which it is alleged is due for improvements made on the premises by the mortgagor between the time of making the loan and the time of the sale. The prayers of the petition are, first, for a judgment against defendant, and a special judgment against the premises for the amounts above referred to; second, for injunction against the defendant to restrain it from selling, conveying, or encumbering the property; third, that plaintiff’s equitable lien on the premises be set up and established. A general demurrer to the petition was sustained, and the plaintiff excepted.
We see no error in the ruling complained of. The suit is simply an effort by the plaintiff to recover back payments made on the loan after the creditor has exercised the power of sale given it in its mortgage, and become, in strict pursuance of the contract between the parties, the owner of the property which formerly belonged to the debtor. When in a contract a debtor gives to his creditor the right of enforcing the collection of his debt by the sale of the debtor’s property without resorting to the ordinary processes of the law, the fact that the creditor sees proper to exercise this power does not operate as a rescission