Payton v. McPhaul

Jun 14, 1907
Reporters:
, ,
Before:
Cobb
Cobb, P. J.

(After stating the facts.)

1. The court will take judicial notice of the fact that land lot number 307 in the 7th district of Worth County, Georgia, contains 490 acres and is in the form of a square. Huxford v. Sou. Pine Co., 124 Ga. 182 (3). It is claimed that the description of the property mortgaged is so indefinite that no lien was created by the execution of the mortgage. The description is “100 acres in thé southeast corner of land lot No. 307 in the 7th district of Worth County, Ga.” A deed or mortgage will not be held void .for an insufficient description of the property if by any reasonable construction of the terms of the instrument the description therein .used can be held to enclose or embrace a tract of land. If three sides of a tract are given, and there is’ nothing to indicate that the line not given is otherwise than a straight line, the description will be completed by supplying a straight line, and thus enclosing a tract; this being presumed to be the intention of the parties. Ray v. Pease, 95 Ga. 153 (1). Persons do not execute deeds and mortgages except for the purpose of conveying, or creating a lien upon the property, and the intention to convey or create a lien will never be held to have been futile on account ‍‌​​​‌‌‌​​​​​‌​‌‌‌​‌​‌​‌​​‌​​​​​‌‌‌​‌​‌‌​‌​​​​​​‌‌​‌​‌‌​‌‌‌‌‌‌‌​​‌‌‌‌​‌‌‌‌‌‌​​​‌​​​​‌‌‌‌‌​‌‌​‌‌​​‍of the description of the propertjq when, by any reasonable construction, the instrument ma}*’ be upheld. If two sides of a tract of land at right angles to each other are given, and it is clear from the instrument that it was the intention of the parties that the land conveyed should be in the shape of a square, the other two sides will be supplied by construction, by drawing lines parallel with those which are given. In Walsh v. Ringer, 2 Ohio, 327 (15 Am. Dec. 555), the deed described the land as “70 acres of land being and lying in the southwest corner of the southwest quarter section of section 14.” In the opinion it was said-: “The general position of the land conveyed is given with sufficient certainty. It is in the south*515west corner. According to the rules of decision, both in this State and in Kentucky, that corner is a base point from which two sides of the land conveyed shall extend an equal distance, so as to include by parallel lines the quantity conveyed. From this point the section lines extend north and east so as to fix the boundary west and south, the east and north boundaries only are to be established by construction, and the rule referred to gives them with sufficient certainty.” See also 2 Devlin on Deeds (2d ed.), § 1013. The lot out of which the mortgage is to be taken is a square. The property intended to be mortgaged is in the corner of the square and contains one hundred acres. The number of acres intended to be mortgaged can not be more nearly or accurately described to be in the corner of the lot than by taking the lines of the lot forming the corner referred to, and drawing parallel lines from each of such lines at such a point that the four lines would embrace a square containing one hundred acres. It can be reasonably inferred that this was the intention of the parties; and this construction will be placed upon the terms used.

2. At the time the mortgage was executed, the county site of Worth County was the town of Isabella. At the time that the power of sale was exercised, the county site was at the City of Sylvester. The power of sale in a mortgage must be construed like other parts of the contract, so as to effectuate the intention of the parties; and this is true as to the place of sale as well as in regard to the other stipulations in the power. There are numerous cases dealing with the question as to the ‍‌​​​‌‌‌​​​​​‌​‌‌‌​‌​‌​‌​​‌​​​​​‌‌‌​‌​‌‌​‌​​​​​​‌‌​‌​‌‌​‌‌‌‌‌‌‌​​‌‌‌‌​‌‌‌‌‌‌​​​‌​​​​‌‌‌‌‌​‌‌​‌‌​​‍validity of sales where for some reason the place of sale, as indicated by the strict terms of the power, was not chosen as the place of sale on account of events transpiring between the date of the execution of the instrument and the date that the power was exercised. When the power provides that the sale shall be at the court-house door, the rebuilding, removal, destruction, or temporary abandonment of the building raises a doubt as to where the sale should be had under the power. The general rule is, that where the door of the courthouse is designated as the place of sale, the building is referred -to in its character as an official and public building, and that therefore the place of sale is the court-house at the time of the foreclosure, rather than the place used for that purpose at the. time, the mortgage is executed. This has been held even where the *516court-house was temporarily abandoned, as well as in cases where the building was destroyed or permanently abandoned. The decisions, however, are by no means in harmony. No general rule-seems to have been laid down fixing the place of sale when there has been a new location of the court-house. In some cases the sale at the old situs has been held good, and in others a sale at the door of the new structure has been upheld. 28 Am. & Eng. Enc. of Law (2d ed.), 804; 2 Jones on Mort. (6th ed.) § 1848. In Napton v. Hurt, 70 Mo. 497, the power was to sell at the courthouse in Kansas City, and after the execution of the mortgage the-court-house was by law removed to and established in a different place in the same city; and it was held that the sale must be had at the new place, and not at the old. In Williams v. Pouns, 48 Tex. 141, it was held that a trust deed requiring the sale to be made at the court-house of the county is properly executed by a. sale at the court-house of a newly organized county which includes the land sold. It will be seen, from an examination of these authorities, that the court is in each instance endeavoring to ascertain the intention of the parties and carry it into effect, as to the place of sale, and that wherever there has been a change of the location of the court-house between the date of the execution of the mortgage and the date of the sale, the sale has been upheld, even though at the new place, if it was fairly conducted and no injury was shown to have resulted from conducting it at ‍‌​​​‌‌‌​​​​​‌​‌‌‌​‌​‌​‌​​‌​​​​​‌‌‌​‌​‌‌​‌​​​​​​‌‌​‌​‌‌​‌‌‌‌‌‌‌​​‌‌‌‌​‌‌‌‌‌‌​​​‌​​​​‌‌‌‌‌​‌‌​‌‌​​‍such place.

The power in the mortgage under consideration declares that-the sale shall be “before the court-house door in the town of Isabella, 6a.” The question is whether it was the intention of the parties that the sale should be held at the place for legal sales, for Worth County, or whether it was the intention that the sale’ should be at the town of Isabella, without reference to whether legal sales were conducted at that place. A sale could never be had in strict compliance with the power; for the reason that at the date of the sale there was no court-house door in the town of Isabella. It may be that the old building formerly used was’ still there, but it was no longer the court-house of the county. It does, not appear that the land was situated in the town of Isabella, nor is there anything‘to indicate whether it was nearer the town, of Isabella than to the City of Sylvester. It would be a reasonable construction of the terms of the power that it was the intention. *517of the parties that the sale should be held at the county site, rather than at the place which was no longer the place of holding sales for the county. The use of the word “court-house” is significant.’ Isabella can be considered as simply descriptive of the place where the court-house was situated, and not as the place ■designated for the sale. But the court-house door is the place. ‘The court-house door of Worth County was, at the date of the sale, in Sylvester. We think the power was properly executed by the sale at the court-house door of Worth County, that is, in the City ■of Sylvester.

3. The deed made in pursuance of the sale under the power was ■signed by the Bank of Poulan through its president, vice-president, .and a director. Objection is made that this was not a good execution of the power, for the reason that it should have been signed in the name of Collier. It distinctly appears, from the recitals in the deed, that it was the intention of the grantor to convey the property in behalf of Collier, and not in its own behalf. Tinder the ruling in Tenant v. Blacker, 27 Ga. 418, this was a good execution of the power. See also Terry v. Rodahan, 79 Ga. 278. If there is anything in the cases of Compton v. Cassada, 32 Ga. 418, and Mosely v. Rambo, 106 Ga. 597, in conflict with the ruling just referred to, what is said therein must yield to the older ruling. While it appears from the headnote in Tenant v. Blacker that the statement therein was the opinion of only Benning, J., an -examination of the ease shows that the point ‍‌​​​‌‌‌​​​​​‌​‌‌‌​‌​‌​‌​​‌​​​​​‌‌‌​‌​‌‌​‌​​​​​​‌‌​‌​‌‌​‌‌‌‌‌‌‌​​‌‌‌‌​‌‌‌‌‌‌​​​‌​​​​‌‌‌‌‌​‌‌​‌‌​​‍was directly inwolved and absolutely necessary to be decided.

4. It is said, though, that McPhaul was the president of the ‘Bank of Poulan and the owner of a large majority of the stock therein, and that the purchase by him at the sale was really a purchase by the Bank of Poulan. The general rule is that a mortgagee selling under a power of sale can not buy at his own ■sale, either directly or indirectly. 28 Am. & Eng. Enc. Law (2d ed.), 818; 2 Jones on Mortgages (6th ed.), § 1876. But a purchase by the mortgagee is not absolutely void. It is merely voidable, and only voidable at the instance of the mortgagor or the ■owner of the equity of redemption at the time of the sale. Palmer v. Young, 96 Ga. 246; 28 Am. & Eng. Enc. Law (2d ed.), 819; 2 Jones on Mortgages (6th ed.), § 1876a. Neither a judgment creditor of the mortgagor whose judgment is rendered sub-* *518sequently to the execution ‘and record of the mortgage, nor a purchaser at the sale under such a judgment subsequently to a sale under the power, is allowed to impeach a purchase by the mortgagee at his own sale. Williams v. Williams, 122 Ga,. 178; Martinez v. Lindsay (Ala.), 8 Sou. 787.

5. The code declares that all titles made as a part of a usurious contract are void. Civil Code, § 2892. But we know of no law which says that a mortgage shall be invalid when the debt sought to be secured thereby is infected with usury. The debtor may plead the usury and reduce the amount to be recovered in the foreclosure suit, but the lien of the mortgage may be asserted for the principal and lawful interest due on the debt. If the mortgagee is thus allowed to foreclose at law for the principal and lawful interest on the debt, we see no reason why he should not be allowed to exercise the power of sale to this extent. While the case of Mosely v. Rambo, 106 Ga. 597, may not be said to be a direct ruling on this question, the reasoning of the court tends to that end. In that case the mortgagor acquiesced in the sale under the power, and it was held that he could not thereafter impeach the sale on the ground of usury.

6. It is said that it does not appear from the allegations of the petition that the debt of Collier was unpaid at the time that the sale under the power was had. It does distinctly appear that the debt was not paid at maturity, and we do not think it is incumbent upon the plaintiff to negative the fact that payment had been made after maturity and before the execution of the power. ‍‌​​​‌‌‌​​​​​‌​‌‌‌​‌​‌​‌​​‌​​​​​‌‌‌​‌​‌‌​‌​​​​​​‌‌​‌​‌‌​‌‌‌‌‌‌‌​​‌‌‌‌​‌‌‌‌‌‌​​​‌​​​​‌‌‌‌‌​‌‌​‌‌​​‍The evidence was conflicting as to who was in possession of the land. Both plaintiff and defendants claimed to be in possession.. The person in actual possession of the land seems to have been Anglin, and both of the parties claim him as a tenant. There was evidence that Anglin had attorned to each. The plaintiff was proceeding against him as a tenant by distress warrant to-collect rent. Anglin had given a note to the defendants for rent. The judge resolved this issue of fact by holding that the plaintiff was in possession, and we will not disturb his finding on that question. If the plaintiff was in possession, he was entitled to the undisturbed possession. The defendants were interfering with him. They had committed an actual trespass. It is alleged in the petition that they were threatening to commit other *519acts of trespass, and the answer practically admits that but for the injunction the defendants would have continued to deal with the land as their own. Such conduct on their part would amount to a trespass if the plaintiff was the holder .of the legal title and in possession. We do not think that the judge abused his discretion in granting a temporary injunction until these issues of fact could be decided by a jury.

Judgment affirmed.

All the Justices concur.