Opinion
34710.
DECIDED OCTOBER 30, 1953. REHEARING DENIED NOVEMBER 18, 1953.
Sale of land under power of deed. Before Judge Vaughn. DeKalb Superior Court. April 29, 1953.
O. J. Tolnas, for plaintiff in error.
Lipshutz, Macey Franklin, Edward D. Wheeler, contra.
1. (a) Even where there is no bona fide effort to brief the evidence as required by Code § 70-305, the writ of error will not be dismissed, but the assignments of error depending upon a consideration of such evidence will not be decided. Boston Insurance Co. v. Harmon, 66 Ga. App. 383 (1) ( 18 S.E.2d 84).
(b) The rule prescribed by Code § 70-305 is for the benefit of the court and not the parties litigant. Hargett v. Muscogee Bank, 32 Ga. App. 701 (1) ( 124 S.E. 541). It will accordingly be construed liberally in favor of a decision of the case on its merits.
(c) There is no such lack of bona fide effort to brief the evidence here as to require this court to decline to consider the assignments of error dependent upon its consideration.
2. Since an assignment of error in the bill of exceptions in this case is that the trial court erred in directing a verdict for the plaintiff in a sum less than that demanded by the evidence, the exception is proper by direct bill of exceptions in the absence of a motion for a new trial, and the bill of exceptions is not subject to be dismissed on this ground. Mullis v. McCook, 185 Ga. 171 ( 194 S.E. 171); Arnold v. Selman, 83 Ga. App. 150 (1) ( 62 S.E.2d 919).
3. Where, as here, the grantee in a second security deed is also the assignee of the first security deed, and the grantor of the second security deed is in possession of the land described therein by virtue of a warranty deed in which he assumed and agreed to pay the loan secured by the first security deed, the holder of both security deeds, in case both debts thereby secured are in default, may exercise the power of sale granted by both of said instruments at the same time by advertising and conducting a single sale to satisfy both debts with the proceeds thereof. The fact that such security-deed grantee and assignee designated herself as agent of the one in possession under the warranty deed invalidated no part of the sale.
4. Since both instruments authorized the exercise of the power of sale contained therein to satisfy unpaid taxes or assessments, and since the taxes and paving assessments here involved were in default at the time the sale was conducted, the seller at such sale properly applied a portion of the proceeds thereof to the payment of the same. Since the advertisement specifically pointed out that the property was being sold to satisfy unpaid taxes and assessments, among other purposes, obviously the purchaser at such sale did not reduce his bid in proportion to the amount of such taxes and paving assessments and did not purchase the property subject thereto.
5. The judgment of the trial court sustaining the special demurrers, together with the language in which it was couched, is without error for the reasons set forth in the corresponding division hereof.
DECIDED OCTOBER 30, 1953 — REHEARING DENIED NOVEMBER 18, 1953.
N.C. Williams (hereinafter called the plaintiff) sued Esther S. Joel (hereinafter called the defendant), in the Superior Court of DeKalb County. The petition as finally amended alleged facts substantially as follows: On October 10, 1945, the plaintiff purchased certain lands in Clark County from R. H. Gill, accepting a warranty deed therefor, in which the plaintiff assumed and agreed to pay a certain loan evidenced by a promissory note dated June 30, 1945, in the principal sum of $3,600, and executed by Gill to May S. Rayle, which indebtedness was secured by a security deed on the land in question and executed by Gill to May S. Rayle. This security deed contained a power of sale clause as follows: "For the purpose of . . . carrying out the power of sale herein given, party of the second part, his heirs, executors, administrators, successors and assigns, as the case may be, are hereby constituted and appointed attorney in fact for the party or parties of the first part to act for him or them as herein provided and . . . in case of the sale to convey the same to the purchaser or purchasers, signing the name of the party or parties of the first part to such conveyance by party of the second part, or his heirs, executors, administrators, successors or assigns as attorney in fact."
After the plaintiff had received a deed from Gill to the land in question, he obtained a loan from the defendant of $600, on which he subsequently paid $5. He executed a note payable to the defendant and a security deed securing this indebtedness. This deed also contained a similar power of sale. Each of these instruments also obligated the grantor to pay certain fire-insurance premiums, taxes, and other assessments. On March 3, 1950, after both the obligations secured by the first and second deeds hereinbefore mentioned had become in default, and after taxes and paving assessments had become due and payable, the defendant elected to declare the whole of the obligation secured by said two security deeds due and payable and proceeded to foreclose by advertisement in the proper newspaper of Clarke County, in which advertisement she set forth the two security deeds and declared herself to be in the exercise of the power of sale granted thereunder. In said advertisement there was also a recital as follows: "The undersigned will conduct the sale as the agent and attorney in fact of Nathan C. Williams, and will execute a conveyance to the purchaser all as provided in the said deeds to secure debt." It was signed, "Mrs. Esther S. Joel, as agent and attorney in fact for Nathan C. Williams." Pursuant to the advertisement, the property was sold at public outcry before the courthouse door on the first Tuesday in April to Charles S. Joel, Jr., for $4,950. The defendant thereupon executed a deed to the purchaser in which she referred to the security deeds and the powers of sale contained therein, and designated herself as attorney in fact for Nathan C. Williams pursuant to the powers of sale set forth in said instruments. Thereafter, she paid the expenses of the sale in the sum of $30, a fire-insurance premium of $27, and taxes and paving assessments of $442.58. The balance she retained.
The plaintiff's suit is for the proceeds of the sale less $595, principal of the note secured by the junior security deed, $86.66 interest thereon, $27 fire-insurance premiums, and $30 expenses of advertisement. Certain special demurrers were interposed thereto, and the judgment sustaining these demurrers was excepted to pendente lite and assigned as error in the bill of exceptions. Also, certain language contained in the judgment overruling the demurrers was likewise excepted to pendente lite and assigned as error in the bill of exceptions.
On the trial, the parties stipulated facts substantially as set forth in the petition. The court directed a verdict for the plaintiff in the sum of $375.33, and entered a judgment accordingly. This verdict and judgment gave the defendant credit for $3,380.32 principal of the note secured by the first security deed, $13 interest thereon, $595 principal of the note secured by the second security deed, $86.66 interest thereon, $27 fire-insurance premium, $30 expenses of advertisement, and $442.58 taxes, making a total of $4,574.67, which, when subtracted from the total amount of sale, represents a balance of $375.33. All the sums here set forth were stipulated as correctly representing the various items listed above.
The plaintiff excepted by direct bill of exceptions to the direction of the verdict, contending, first, that a verdict was demanded by the evidence (the facts as stipulated) for the full amount of the sale less the second-security-deed note, the interest thereon, the fire-insurance premium, and the expenses of advertising, a total of $738.60, which, when subtracted from $4,950, leaves a balance of $4,211.34, representing the amount which the plaintiff contends the verdict should have been for in his favor. It is insisted that the power of sale contained in the first security deed executed by Gill to Mrs. Rayle designated the latter as attorney in fact for the former; and that the effect of the assignment of this instrument by Mrs. Rayle to Mrs. Joel was to designate Mrs. Joel as agent for Gill instead of Mrs. Rayle, it being insisted that the defendant upon becoming the assignee of the security deed stepped into Mrs. Rayle's shoes and took her place in connection with said instrument; that, insofar as the sale of the property was had under this security deed, it was wholly void; that the defendant was without authority to sell said property and conduct the sale "as the agent and attorney in fact of Nathan C. Williams," and was without authority to execute a conveyance to the purchaser in the name of the plaintiff insofar as this first security deed was concerned; that, therefore — treating the effort to sell under the first security deed as void and of no effect whatever, and in view of the fact that the property brought $4,211.34 over and above every proper deduction that could be made from the sale price under the second security deed, which is contended to be the only valid authorization for the sale — the plaintiff contends that he is entitled to have this sum paid over to him by the defendant, and should have had a verdict directed in his favor for that amount.
Secondly, the plaintiff contends that, in the event it should be held he was not entitled to have paid over to him the amount of the first security deed and interest thereon, he is at least entitled to have paid over to him in addition to the amount for which the verdict was directed, the sum total of the taxes and paving assessments, which amounts to $442.58. He contends that he is entitled to this amount because the purchaser bought the property subject to the taxes and assessments and lessened his bid to this extent, and that the verdict should have been directed for this sum in addition to the amount directed by the court.
A motion to dismiss the bill of exceptions was made on the ground that the plaintiff failed to brief the documentary evidence contained therein, and on the further ground that he did not make a proper exception, in the absence of a motion for new trial, to the verdict as directed by the trial court.
1, 2. Headnotes 1 and 2 require no elaboration.
3. Powers of sale in security deeds are to be strictly construed and fairly exercised. Code § 37-607; Doyle v. Moultrie Banking Co., 163 Ga. 140 ( 135 S.E. 501); White v. Young, 122 Ga. 830 ( 51 S.E. 28). Under Code (Ann. Supp.) § 37-607 such powers of sale are assignable. The security deed under consideration, with the power therein contained, was assigned by the original grantee, Mrs. Rayle, to the defendant, Mrs. Joel, with the same formality of execution as the deed itself. Consequently, the power of sale therein contained was one which might properly be exercised by Mrs. Joel in the foreclosure proceedings. She thus succeeded to all rights of the original grantee, together with all remedies for enforcing the same. Redwine v. Frizzell, 184 Ga. 230 (2), 234 ( 190 S.E. 789); Universal Chain Theatrical Ent. v. Oldknow, 176 Ga. 492 (1) ( 168 S.E. 239).
In like manner Williams, when he accepted a warranty deed from the grantor Gill and entered thereunder, succeeded to all the rights and liabilities of Gill in regard to the latter's equity in the property. Code § 29-102. He was bound by all the conditions and covenants of the deed, including one as follows: "the party of the second part agrees to assume the note thereon amounting to $3,600 due Mary Rayle payable at the rate of 5% of the principal amount due semi-annually plus interest." In Carver v. Leach, 53 Ga. App. 112 (1) ( 185 S.E. 155), it was held that "a consideration recited in a deed that the grantee is to pay to the grantor $200 and assume the payment of a loan due by the grantor to a bank, which loan is `approximately $1,200' is unambiguous, and the grantee who has accepted the deed is liable to pay as part of the purchase price the amount of the loan, whatever it is, provided it is approximately $1,200." The plaintiff grantee, Williams, was accordingly liable to Mrs. Joel, assignee of the security deed which he assumed, for the amount of the indebtedness secured thereby, and was bound by the power of sale therein contained, which constituted the owner of such security deed the agent of the owner of the equity of redemption in the foreclosure proceedings. Accordingly, he cannot complain that Mrs. Joel, in foreclosing the first security deed, designated herself as the agent of the plaintiff, who was such owner.
4. Each security deed contained in the power of sale the authority to sell the property for the purpose of paying all past-due taxes or assessments. Also, the advertisement specifically set forth that the sale was to be held for the purpose, among others, "of payment of . . . all taxes that may be due." A person, therefore, appearing at the sale pursuant to this advertisement must have fully understood that the taxes were to be paid out of the purchase money and therefore did not lessen his bid so as to assume the taxes. This contention is without merit.
5. The ruling of the trial court sustaining certain special demurrers to specified allegations of the petition, contending that the same constituted conclusions of the pleader, is without error, in that it rid the pleadings of improper conclusions and left for determination only the questions of law decided in divisions 3 and 4 hereof. The language of the court pointed out that "The court is of the opinion that the sale of the property, described in plaintiff's petition, by Mrs. Esther S. Joel (defendant) as agent and attorney in fact for Nathan C. Williams (plaintiff) conveyed not only the equity of Nathan C. Williams (plaintiff) to the property, but conveyed title thereto." This language is not erroneous for the reason that title to the property passed to the purchaser at said sale. Craddock-Terry Co. v. Lazarus, 180 Ga. 552 (1) ( 179 S.E. 730).
The trial court did not err in directing a verdict in favor of the plaintiff for the amount specified therein.
Judgment affirmed. Townsend and Carlisle, JJ., concur.