23 S.E.2d 164 | Ga. | 1942
Injunction against enforcement of summary eviction from realty, held error, on application of rulings of law.
2. While it is true, as recognized by the Code, § 20-116, that where parties, in the course of the performance of a contract, depart from its terms and pay or receive money under such departure, a modification by way of a quasi new agreement will be implied, still, in order for this rule to have application, it is necessary that the circumstances be such as will in law imply a mutual new agreement, so that the modification, when taken in connection with the original contract, will provide a new and distinct agreement complete in its terms. Bearden MercantileCo. v. Madison Oil Co.,
3. "The grantee in a deed to secure debt, containing a power of sale, is not required to give notice to the grantor of his intention to exercise the power of sale contained in the instrument, where the same provides for no notice other than by advertising in a given manner." Kent v. Hibernia Savings c.Association,
4. "Where a summary proceeding is instituted by [an alleged] landlord against his [alleged] tenant, under the Code, § 61-301, to evict the tenant for failure `to pay . . rent . . or [for] holding [the] premises over and beyond the term . .' the tenant has an adequate remedy under § 61-303, by filing an affidavit denying that the rent is due and giving bond as provided by the statute. The mere fact that owing to his poverty the defendant is unable to give the bond would not afford him ground to go into a court of equity and enjoin the plaintiff from pursuing [this] summary remedy." Carlton v. Hibernia Savings c. Association,
5. Under the preceding rulings and the undisputed evidence, it was error to grant the interlocutory injunction.
Judgment reversed. All the Justices concur.