Baggett v. Edwards , 126 Ga. 463 ( 1906 )

Lumpkin, J.

(After stating the facts.) The plaintiff sought to prevent a sale under a power contained in an instrument made by his intestate for the purpose of securing a debt. He did not set out in the petition the instrument itself or the power. He merely alleged that the defendant Edwards claimed that Scogin, plaintiff’s intestate, made to him “a mortgage or security deed” to the lands involved; and that in the conveyance a power .of sale was claimed to be included. He refrained from informing the court exactly what the instrument was, and referred to it in the alternative as a mortgage or deed. There is a difference between the two in respect to a power of sale. In a deed to secure a debt, which passes title, the power is coupled with an interest, and is not revoked by the death of the maker. Roland v. Coleman, 76 Ga. 652. In a mere mortgage it is otherwise. Wilkins v. McGhee, 86 Ga. 764. The allegation, being in this ambiguous or alternative form, must be taken most strongly against -the pleader;'and this being done, the instrument in question may be considered as a deed conveying title, and the power as coupled with an interest.

The case above cited is also controlling on another point raised, Damely: that a proceeding to sell under a power contained in a deed made to secure a debt is not a suit or in the nature of a suit, and the creditor is not compelled to wait until twelve months after the administrator has qualified, in order to sell under the power. In Greenfield v. Stout, 122 Ga. 303, it was said: “Where the grantor in a security deed dies after the execution of the deed, in exercising the power of sale the property should be sold as that of his estate.” This disposes of the contention that after his death it could not be sold as his property.

There was no equity whatever in the petition except as to one point. The sale was advertised to take place on a specified date. The trial court ruled that the advertisement was not such as to authorize a sale at that time under the terms of the instrument. But as the sale was restrained and the time so advertised had passed, he considered that it would be a vain thing to retain the petition merely to declare that it would have been illegal if a sale had taken place. He therefore dismissed the petition on demurrer. This ruling was right. But inasmuch as the court held that there was an error in the advertisement, and there was a proper ground for filing the petition to enjoin the sale at the time it was advertised to take place, the presiding judge will doubtless award costs in view of this situation. He did not include in his judgment any statement as to costs, and therefore there is no ruling on that point for us to review. ,,

Judgment affirmed.

All the Justices concur, except Fish, O. J., absent.