186 Ga. 121 | Ga. | 1938
On November 12, 1930, a borrower executed a deed to secure a loan of $20,000, evidenced by a promissory note of that date and payable five years thereafter. The deed conveyed as security two parcels of realty, one located in Fulton County and the other in DeKalb County. The deed contained the following power of sale: “and the party of the first part furr ther covenants and agrees that in case the debt hereby secured shall not be paid when it becomes due by maturity in due course, or by reason of a default as above provided, the party of the second part, or assigns, may, enter upon said premises and collect the rents and profits thereof, and may sell the said property at auction at the usual place for conducting sales at the court-house in the county where the land lies, in said State, to the highest bidder for cash, first giving four weeks notice of the time, terms, and place of such sale, by advertisement once a week in a newspaper published in said county, all other notice being hereby waived by said party of the first part (and said second party or any person on behalf of said second party, or assigns, may bid and purchase at such sale)', and thereupon execute and deliver to the purchaser at such sale á sufficient conveyance of said premises in fee simple, which conveyance shall contain recitals as to the happening of the default upon which the execution of the power of sale herein granted depends; and the said party of the first part hereby constitutes and appoints the said party of the second part and assigns, the agent and attorney in fact of said first party to make such recitals, and hereby covenants and agrees that the recitals so to be made by the party of the second part, or assigns, shall be binding and conclusive upon said first party, and the heirs, executors, administrators, and assigns of said first party, and that the conveyance to be made by the party of the second part, or assigns, shall be effectual to bar all equity of redemption of the party of the first part, or the successors in interest o£ said first party, in and to said premises; and the party of the second part or assigns shall collect the profits of such sale, and after reserving therefrom the entire amount of principal and interest due, together with the amount of any taxes, as
The note and deed were assigned by the lender, and afterwards by the assignee. The last assignee, in exercise of the power of sale, caused the parcels of realty to be sold separately at public outcry on June 4, 1935, and became the purghaser of both. The borrower brought suit against the purchaser, to set aside the sale and cancel the deed as cloud upon her title, and for damages on account of trespass in taking possession of the land. The alleged grounds of relief were: (1) The loan was not in default, and would not become due until the 12th of November, 1935. (2) The advertisements for sale of the Fulton County realty occurred on May 11, 18, 25, and on June 1st, and the advertisements for sale of the DeKalb County realty occurred May 9, 16, 23, and 30, and “none of said advertisements gave as much as twenty-eight days’ notice. . . The said sale was not advertised for a period of four weeks, as required by said power of sale.” (3) The deeds were void for the reasons set forth in (1) and (2) supra, and “also the recital in each deed is to the effect that the property ‘was advertised once a week for four weeks immediately preceding the sale, and it is not recited in either deed that prior to the sale four weeks’ notice of the time, terms, and place of sale’ was given as required in the power of sale in the original security deed from plaintiff to the Security Mortgage Company.” On motion in the nature of a general demurrer, the judge dismissed the action, and the plaintiff excepted.
1. In the brief of the attorneys for .the plaintiff the question relating only to the second ground of relief was insisted upon. Consequently the other questions will be treated as abandoned, and no ruling made upon them. The question for decision is proper exercise of the power of sale embodied in the security deed. This depends on proper construction of that power; so at last construction is the controlling question in the case. The power to sell involved is after “first giving four weeks notice of the time, terms, and place of such sale, by advertisement once a week in a news
■ Eeferring to the law embodied in these two sections (bearing other numbers in the Code of 1895, in vogue at the time of the decision), it was held in Bird v. Burgsteiner, 100 Ga. 486 (28 S. E. 219) : “An advertisement of sale of land by a sheriff, which is made once in each calendar week for four weeks, is, since the act of 1891 (Acts 1890-91, vol. 1, p. 241), rendering legal certain notices, etc., good as to time, without reference to the number of days which may elapse between the day of the first insertion and the day of sale.” In the opinion it was said: “Formerly thirty days advertisement was required; and later advertisements of such sales made once a week for four weeks met the requirements of the statute. But by an act approved October 21st, 1891 (Acts 1890-91,
The foregoing was cited and held controlling in Garter v. Cope
The same principle was adverted to in Bush v. Growers Finance Corporation, 176 Ga. 99 (167 S. E. 105). The principle was stated and applied by the majority in Plainville Brick Co. v. Williams, 170 Ga. 75 (152 S. E. 85), where the power involved was in the identical language of the power now involved. In that case Mr. Justice Hines dissented, with whom the writer concurred; but on further consideration it seems that the majority view, without resort to the transposition of words as noted in the opinion, was supported by the statutes and decisions hereinabove cited. Applying to the instant case the statutes and the foregoing decisions, the word weeks as used in the power of attorney should be construed as calendar weeks. The power of sale by “first giving four weeks notice,” etc., did not stop there, but went on and directed that the notice should be given “by advertisement once a week,” thus using language which, under the statutes as construed and applied by this court, meant calendar weeks — not a period of time measured in days. The notice of sale was given by publication, once a week in each calendar week for four successive calendar weeks immediately preceding the calendar week in which the sale was advertised to take place. Hnder strict construction of the power of sale, this was sufficient as to time of advertisement, although twenty-eight days did not elapse between the date of first publication and the date of sale. No reference has been made to section 2 of the act of 1935 (Ga. L. 1935, p. 381), relating to advertisements of foreclosure sales of realty under power contained in mortgages, etc., because the instrument in question was executed before passage of that act.
The court did not err in dismissing the action on oral motion in the nature of a general demurrer to the petition.
Judgment affirmed.