Stuard Lumber Co. v. Taylor, 150 Ga. 135

Stuard Lumber Co. v. Taylor

150 Ga. 135 | Ga. | 1920

Beck, P. J.

(After stating the foregoing facts.) Under the facts of this, case it is one for the application of the maxim that equity follows the law. The principle is now embodied in our statute law. “Equity is ancillary, not antagonistic to the law; *138hence equity follows the law where the ruie of law is applicable, and the analogy of the law where no rule is directly applicable.” Civil Code, § 4520. The Stuard Lumber Company, under its mortgage and the power of sale contained therein, had certain well-defined, absolute, vested rights. If the order restraining it from the enforcement of the mortgage according to its terms is allowed to stand, it will be deprived of a substantial right, that is, the right to bring the property to sale and realize on its security. To do this it is as clearly its right as it is to have its debt paid. If the properties of the Pine and Cypress Company, taken possession of by the receivers under the order of the court and sold or leased to the Albemarle Lumber Company, so clearly and so far exceed the liabilities of the latter company, the receivers might be authorized to borrow, and could easily borrow, a sufficient amount to pay off the debt of the Stuard Lumber Company; or if the title to the timber and the equipment has passed to the Albemarle Lumber Company, the purchaser, it could borrow a sufficient amount to pay off the Stuard Company. But neither the receivers nor the Albemarle Company have'a right to insist that the Stuard Company shall not enforce its plain legal rights, upon the ground that it would be better for the stockholders or better for the purchaser of the property, who took with notice of the 'liens upon it, to postpone the payment of the Stuard Lumber Company’s mortgage. Of course circumstances arise in some eases that authorize a court of equity to restrain the mortgagee or one holding a power of sale from exercising his legal rights; but no such peculiar circumstances are shown here. The power of sale in a mortgage is conferred for the purpose of effecting a speedy payment of the debt. This purpose is in the contemplation of the mortgagor and mortgagee at the time of the execution of the instrument; and the time of the exercise of the power depends upon the terms therein set forth. If no fraud was practicd by the mortgagee and no unconscionable advantage taken to procure the mortgage containing the power, and the rights of third persons at the time of the execution of the mortgage were not affected or impaired, the instrument and any power that it may contain will be given effect according to its plain provisions. “Hard times constitute no ground for equitable interference to stop a judgment at law from making the money *139recovered, out of tbe defendant’s lands, at the suit of anybody, so far as we know of have heard.” Poullain v. English, 57 Ga. 494. See also Tillman v. Stewart, 104 Ga. 687 (30 S. E. 949, 69 Am. St. R. 192), and other cases therein cited.

Judgment reversed.

All the Justices concur, except Gilbert, J., absent for providential cause.