170 Ga. 75 | Ga. | 1930
It can clearly be seen from the statement of facts that there is but one real issue in this case. The correctness of the ruling of the judge of the trial court, which is challenged in the bill of exceptions, depends upon whether the power of sale embodied in the security deed executed by J. I. Hembree to J. T. Williams was fairly exercised within the provisions of section 4620 of the Civil Code of 1910. The code section was originally of judicial origin, and its language was taken from the decision in Calloway v. Peoples Bank, 54 Ga. 441, in which the opinion of the court was delivered by Judge McCay, with whom Chief Justice Warner and Judge Trippe concurred. The ruling in that case that a power to a mortgagee to sell property mortgaged on failure of the mortgagor to pay the debt at its maturity is a lawful power and is irrevocable, and this power may be exercised against the mortgagor and those claiming under him either by deed or as purchasers at a judicial sale under process to which the mortgage is superior in its lien, was based upon the decision of this court in Robenson v. Vason, 37 Ga. 66, in which Chief Justice Warner delivered the opinion: “As a general proposition, the power to mortgage would seem to include in it a power to authorize the mortgagee to sell, on default of payment. Wilson v. Troup, 7th John. Chan. Rep. 32. In this ease there is an express power given by the mortgagor to the mortgagee, or his assignee, to sell the mortgaged property in default of payment, upon giving thirty days notice.” The provisions of section 4620, first entered in the Code of 1873, have appeared in all subsequent Codes. It was insisted in the argument of this case that the power of sale in the security deed from Hembree to Williams was not exercised in good faith or according to the terms of the power; that the advertisement of valuable real estate in Atlanta in a suburban newspaper on the extreme border-line of Fulton County, and the sale in accordance with the advertisement being conducted on a day
Counsel for the plaintiff concedes that Carter v. Copeland would be 'decisive upon the point but for the fact that the language used in the power of sale differentiates it from that case and other similar rulings. We can not agree with this contention. In arriving at the true meaning of words it is always permissible to transpose words of description. In the deed from Hembree to Williams the wording is “four weeks notice of the time, terms, and place of such' sale, by advertising once a week in a newspaper published in said county.” Suppose we transpose those same words so they will read, “by advertisement once a week in a newspaper published in said county, giving four weeks notice of the time, terms, and place of such sale.” Hnder all the rulings of this court, an advertisement once a week in a newspaper published in said county, giving four weeks notice, would give four weeks notice if it was published four times, if the provisions of section 6063 have application to private powers of sale. Of course if the contention of counsel that section 6063 has no application to a private power of sale were correct, our ruling might be different, but on the contrary this court has held, as we have just pointed out, that powers of sale executed in individual transactions may be construed in the light of the provisions of section 6063, as to the length of time requisite for advertisement of such sales.
Having held that the sale of the property in question, so far as were concerned the advertisement of sale, the medium through which the advertisement was to be given, and the time and place when the sale could be held, complied with the requirements as contained in the deed with power of sale executed by Hembree to Williams, we come to the question as to whether there was a fair exercise of the power without regard to these matters. In other words, the controlling question in this case is whether the judge
The power of sale requires that the grantee should first give four weeks notice of the time, terms, and place of sale, by advertising the sale once a week for four weeks in a newspaper published in the county. This requirement was not complied with by publishing the sale once a week for four weeks in a newspaper, when the interval of time between the publication of the first notice and the time of the sale did not amount to twenty-eight days. To give four weeks notice, the notice must be for the period of twenty-eight days between the time of publication of the first notice and the date of the sale. Under the power of sale notice was to be given by publishing it once a week for four weeks, but the length of time between the first publication of the notice and the sale could not be less than twenty-eight days. The first paragraph of the power fixes the length of time the notice should be given. The second prescribes the method of publishing the notice. So I dissent from the ruling in the first division of the decision; but 1 concur in the result. I am authorized to say that Mr. Justice Atkinson concurs herein.