McDuffie v. Merchants & Citizens Bank

172 Ga. 434 | Ga. | 1931

Lead Opinion

Atkinson, J.

In a former decision this court announced as applicable the principle: “When the bank, while holding the equitable interest of Mrs. McDuffie in two tracts of land by virtue of her assignment to the bank of her bond for title from Forman, which embraced both the tracts of land referred to, took a warranty deed to only one of the tracts, there was a merger of the lesser estate (conveyed by the assignment of the bond for title) into the greater estate conveyed by the deed of purchase and sale, which extinguished the debt secured by the assignment of the bond for title and restored to the debtor her equitable interest in the other tract of land which had been assigned as security for debt to the bank.” McDuffie v. Merchants Bank, 168 Ga. 231 (147 S. E. 111). On this principle the judgment of the trial court was reversed. The subsequent trial was on substantially the same issues, except that the defendant amended its answer so as to seek a money judgment against the plaintiff for the amount of the alleged debt, which, would render unnecessary the exercise of the power of sale which the plaintiff was seeking to enjoin. The judge, in rendering the decision upon which error is assigned in the main bill of exceptions, failed to apply the principle above announced by this court.

Judgment reversed on the main bill of exceptions, and affirmed on the cross-bill.

All the Justices concur.

---

Concurrence Opinion

Gilbert, J.,

specially concurring. While adhering to the views entertained when the former decision by this court was rendered, I now concur in this judgment because of the former decision.