116 Ga. 285 | Ga. | 1902
An equitable petition for specific performance-, was filed by Seymour against the National Building and Loan Association of Montgomery, Alabama. The defendant filed an answer in the nature of a cross-bill, to which Yarnedoe was made a. party. It was admitted that the case made by this answer was-controlled'by the result of the main case. From the evidence it. appeared that the defendant, acting under a power of sale contained, in a security deed to it from Yarnedoe, had advertised certain property of Yarnedoe’s for sale. At the appointed time and place-an agent of the defendant appeared and sold the property at pub-
The question is made, therefore, whether this sale was within the statute of frauds. The plaintiffs in error contended that it was not, for the reason that this sale was equivalent to a strictly judicial sale, and that such a sale was effectual and enforceable without a written memorandum. After a careful consideration of the case we have come to a contrary conclusion. That sales by auction are within the, statute of frauds is settled in this State. White v. Crew, 16 Ga. 416; Civil Code, § 3527. It has, however,been expressly provided that “no note or memorandum in writing shall be necessary to charge any person at a judicial sale.” Civil Code, § 5448. The present case does not come within this provision; for the sale was not a judicial sale within the meaning of the statute. In this State the term “ judicial sale ” is used to denote more than what is known in the text-books as such, and includes execution sales. It does not, however, include a sale of the character now in question. In Mutual Loan & B. Co. v. Haas, 100 Ga. 111, it was held that a sale under a power given in a mortgage was equivalent to a sale under a foreclosure of the mortgage by a court of competent jurisdiction, and had the same effect as to cutting off hens junior to the mortgage. It would be an extension of this decision to hold that this was a judicial sale within the meaning of the code section cited above. A sale under the power or a sale under a proper foreclosure would, either of them, have the effect of cutting off junior liens. Either method, so pursued as to result in a valid and binding sale, would have this result. But this is no reason for omitting an essential part of the method pursued, merely because such part would
There was no error in allowing the defendant to withdraw its motion for a nonsuit. It appears that the court had orally announced that it would sustain the motion, but no order had been taken. It was 'accordingly within the discretion of the court to allow the motion to be withdrawn. Then, as the evidence was such as to demand a finding for the defendant, there was no error in directing a verdict accordingly.
Judgment affirmed.