51 Ga. App. 771 | Ga. Ct. App. | 1935
Lead Opinion
This was a proceeding by M. H. Steedley to dispossess J. M. Steedley as a tenant at sufferance, whose sole defense was that he did not hold the premises from the plaintiff or from any one under whom the plaintiff claimed. The plaintiff claimed title derived from the sale of the premises under a power of sale conveyed by the defendant in a deed to secure debt. A verdict for the plaintiff was directed. The sole question for determination, as presented by the record and the arguments in the briefs of counsel, is whether the deed conveying the premises as security for the debt which was made by J. M. Steedley to Walter Bennett on April 11, 1925, and recorded in the clerk’s office in deed book 3 page 514, and which contained a power of sale to the grantee or his assigns, was, together with the power of sale, transferred by an assignment by a separate instrument in writing dated January 10, 1930, which reads as follows: “For value received, I, Walter Bennett, do hereby sell, assign, transfer, and convey unto the Blackshear Bank, its successors and assigns, the certain deed to secure debt executed by James M. Steedley to-on-, recorded in the office of the clerk of the superior court of Bacon County, Georgia, in deed book 3, beginning at page 214, on April 14, 1925, together with the debt thereby secured and the real estate therein described, and all rights, powers, privileges, and benefits by said security deed conferred upon me to secure and enforce the payment of the debt in said security deed described.”
If the latter instrument constituted an assignment of all the rights of the grantee in the security deed, together with the assignment of the power of sale therein, the court did not err in admitting the assignment in evidence over objection, and the evidence demanded the verdict as directed. If this instrument did not constitute such an assignment, the plaintiff, whose title to the land was dependent upon the validity of the assignment, acquired no title to the land by the sale under power, and a verdict for the plaintiff was not authorized. Any extrinsic evidence which is not inconsistent with or contradictory of anything contained in the written assignment is relevant and material as tending to identify the deed to secure debt, containing the power of sale purporting to be assigned by the entry of transfer, Shiver v. Young, 38 Ga. App. 409 (144 S. E. 129). The only evidence tending to aid in the construction of the assignment and to identify the deed to secure
Is the above evidence sufficient to establish the written assignment or transfer as a transfer of the security deed executed by James M. Steedley to Walter Bennett on April 11, 1925, and recorded April 14, 1925, in deed book No. 3 at page 514? This transfer purports to be a transfer or assignment by Walter Bennett to the Blackshear Bank of the deed to secure debt, executed by James M. Steedley and recorded on April 14, 1925, in deed book No. 3 beginning at page 214, but does not indicate the grantee of the deed executed by James M. Steedley. It appears conclusively and without dispute from the evidence that there is no deed from James M. Steedley recorded on page 214 of deed book No. 3, but it does appear that there is a deed to secure debt executed by James M. Steedley to Walter Bennett recorded on April 14, 1925, on page 514 of deed book No. 3. The description in the transfer or assignment fails to identify the deed to secure debt assigned as the deed to secure debt from James M. Steedley to Walter Bennett, executed on April 11, 1925, recorded on April 14, 1925, at page 514 of deed book No. 3. Extrinsic evidence therefore is necessary to aid the description in the transfer or assignment, to establish it as a valid assignment of the deed to secure debt from James M. Steedley to Walter Bennett, executed April 11, 1925. If the assignment purports to be an assignment or a transfer of this deed, the clause contained in the description that it is recorded on page 214 of
Judgment reversed.
Dissenting Opinion
dissenting. I am of the opinion that the transfer in question, together with the parol testimony with reference thereto, was sufficient to identify and connect the security deed and the transfer, so as to make the transfer a valid one; and that it was not error to admit this transfer in evidence. This being true, there was some evidence to support the verdict, and the judge did not err in overruling the motion for new trial. I therefore dissent from the ruling of the majority of this court.
