180 Ga. 209 | Ga. | 1935
A deed to secure a debt contained a clause providing: “That in case the debt hereby secured shall not be paid when it becomes due, . . the party of the second part, or assigns, may. enter upon the said premises and collect the rents and profits thereof, and may sell the said property at auction . . (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 a 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 party to make such recitals, and hereby covenants and
1. The power of sale involved in this case is a power coupled with an interest, and is absolute for the purposes therein mentioned, without any element of personal confidence in the conferee or limitation as to discretion. Lewis v. King, 165 Ga. 705 (2, 3) (141 S. E. 909). The power, being of such character by contract of the parties, is not inhibited by the Code of 1910, § 3582 (Code of 1933, § 4-204), which declares: “Without the express consent of the principal after a full knowledge of all the facts, an agent employed to sell may not be himself the purchaser; and an agent to buy can not be himself the seller.” Neither the covenant itself nor the power in its entirety is void on the ground, as contended, that it provides for an agent to buy from himself, without full knowledge of all the facts by the principal.
2. “‘Obligations to pay attorney’s fees upon any note or other evidence of indebtedness, in addition to the rate of interest specified therein, are void, and no court shall enforce such agreement to pay attorney’s fees, unless the debtor shall fail to pay such debt on or before the return day of the court to which suit is brought for the
3. “There being in this State no statute requiring notice to be given by the mortgagee to the mortgagor of the intention to exercise a power of sale in a mortgage, when the mortgage provides only for notice by advertisement in-a given manner, no other notice than sirch advertisement is necessary to the validity of a sale under
4. The power of sale is not void on the ground of indefiniteness with regard to applying the proceeds of the sale coming into the hands of the grantee to be administered.
5. Under the principle that he who seeks equity must do equity, the petition for injunction to restrain the defendant from exercising the power of sale in the security deed is demurrable on the ground that the plaintiff did not offer to do equity by paying the secured debt admittedly due. Latimer v. Lyon, 177 Ga. 888 (171 S. E. 562); Liles v. Bank of Camden County, 151 Ga. 483 (107 S. E. 490); Hendrix v. Bank of Portal, 169 Ga. 264 (5) (149 S. E. 879); Code of 1933, § 37-104.
(a) The case differs from Sellers v. Page, 127 Ga. 633 (56 S. E. 1011), and Benedict v. Gammon Theological Seminary, 122 Ga. 412 (50 S. E. 162), in which the debt was not admitted to be due, and in which latter case the judgment upon the note was attacked as void.
(5) When the debt is payable “in gold coin of the United States of present standard of weight and fineness,” and the property is advertised under the power of sale for “cash,” tender in cash would not be excused on the ground that under the Federal laws, and the proclamation of the President of the United States against hoarding gold, it would be impossible for the plaintiff to tender the amount in gold coin.
6. Inasmuch as the petition was demurrable under the principle stated in the preceding division, and the demurrer was sustained, it becomes unnecessary to deal with assignments of error relating to the manner of exercising the power of sale. And even if the petitioner was in a position to ask equitable relief by an injunction on the ground of non-residence of the grantee in question, and on the ground of failure to advertise the sale of the property for the requisite time and in such a newspaper as provided in the power of sale, the judgment sustaining the demurrer and refusing an injunction would not be reversed, and no ruling will be made
Judgment affirmed.