Summary
In Brown v. Ga. State Bank, 141 Ga. App. 570 (234 S.E.2d 151) (1977), this court held that a creditor who holds a promissory note is not put to an election of remedies as to whether he shall sue on the note or exercise his right of redemption contained in the deed, but he may do either or both until the debt is satisfied.
Summary of this case from Harper v. Birmingham Trust National BankOpinion
53507.
ARGUED MARCH 2, 1977.
DECIDED MARCH 11, 1977.
Action on note. Fulton Civil Court. Before Judge Moran.
Barry Staples, David S. Marotte, Duard R. McDonald, Jo Ann Miles, for appellant.
Holcomb McDuff, Michael G. Colquitt, Frank D. Holcomb, for appellee.
The appellant executed a promissory note for a real property purchase money indebtedness, secured by a deed to secure debt conveying the property to the holders of the note. The note and deed to secure were subsequently transferred and assigned to the appellee. The indebtedness being unpaid the appellee instituted an action on the note. The appellant admitted in his answer the execution and delivery of the note and that it was unpaid and in default. The appellee moved for and received summary judgment.
ARGUED MARCH 2, 1977 — DECIDED MARCH 11, 1977.
The appellant concedes that the question on this appeal is whether a secured purchase-money creditor must first foreclose on the secured property and then seek a deficiency or whether he can seek a general judgment on the debt without foreclosing on the security. The appellant argues that the appellee as a secured purchase-money creditor is limited to the procedures of Code Ann. § 67-1503 et seq. and may not elect to proceed under Code § 67-1501. This argument was rejected in Gentry v. Hibbler-Barnes Co., 113 Ga. App. 1, 2 ( 147 S.E.2d 31). "A creditor who holds a promissory note secured by a deed is not put to an election of remedies as to whether he shall sue upon the note or exercise a power of sale contained in the deed, but he may do either, or `pursue both remedies concurrently until the debt is satisfied.'" Oliver v. Slack, 192 Ga. 7, 8 ( 14 S.E.2d 593) and cits. There is no merit in the enumerations of error.
Judgment affirmed. Webb and Marshall, JJ., concur.