Baggett v. Edwards
| Decision Date | 13 August 1906 |
| Citation | 55 S.E. 250,126 Ga. 463 |
| Parties | BAGGETT . v. EDWARDS et al. |
| Court | Georgia Supreme Court |
Where pleadings do not make distinct and positive allegations, but are ambiguous or couched in alternative expressions, on demurrer they will be given that construction which is most unfavorable to the pleader.
[Ed. Note.—For cases in point, see vol. 39, Cent. Dig. Pleading, §§ 66, 67.]
Where the title to land is conveyed to secure a debt, and the instrument is not merely a mortgage, a power of sale for failure to make payment is a power coupled with an interest, and is not revoked by the death of the debtor. Roland v. Coleman, 76 Ga. 652; Willingham v. Rushing, 31 S. E. 130, 105 Ga. 72, 78; Orient Ins. Co. v. Williamson, 25 S. E. 560, 98 Ga. 464, 468; Brice v. Lane, 15 S. E. 823, 90 Ga. 294, 295.
[Ed. Note.—For cases in point, see vol. 40, Cent. Dig. Powers, §§ 27, 78.]
The execution of the power to sell is not a suit against the administrator of the deceased debtor, so as to require a delay of 12 months before action can be taken. Roland v. Coleman, supra.
The presiding judge held that the advertisement which had been made under the power of sale contained in the security deed was not legal, and, there being no exception to this ruling, no decision on that subject is necessary.
Where, under a power of sale contained in a deed made to secure a debt, a creditor was proceeding to advertise the property for sale on a certain date, but the advertisement was not good because not made a sufficient length of time before the date of sale, and where, upon an equitable petition, the sale was temporarily restrained until after the date set for the sale, and the petition was without equity except for the purpose of preventing the sale under the insufficient advertisement at the time fixed in it, which had passed, there was no error in dismissing the petition on demurrer at a later date, there being no purpose to subserve by retaining the case in court after it had accomplished all it could, and when there remained nothing further which would authorize a court of equity to act.
The judgment rendered does not award costs, but, inasmuch as the presiding judge held that there was sufficient ground for the filing of the petition to prevent the sale under an insufficient advertisement on the day named in it. in adjudging which party shall be required to pay the costs he will doubtless take this fact into consideration. In affirming the judgment, the question as to awarding costs is left open for future determination by the judge.
(Syllabus by the Court.)
Error from Superior Court, Fulton County; J. T. Pendleton, Judge.
Action by W. C. Raggett, administrator, against J. L. Edwards and another. Judgment for defendants, and plaintiff brings error. Affirmed.
Baggett, as the administrator of Scogin, deceased, filed his equitable petition against Edwards, a nonresident, and McDaniel, his resident attorney, alleging In brief as follows: Edwards claims that the intestate is indebted to him in the sum of $349 as principal, and interest, upon a promissory note dated January 12, 1901, and due January 12, 1904, and also in the sum of $6.55 for certain taxes; that to secure the payment of these sums the intestate in his lifetime, on January 12, 1901, made to him "a mortgage or security deed" to two described parcels of land; that there is in the conveyance a power of sale authorizing him, his agent or attorney, if the debt should not be paid when due, to sell the lands at public outcry to the highest bidder for cash, for the purpose of paying such debt, "after first advertising the time and place and terms of said sale In some paper published in Fulton county, once a week for four weeks previous to the time appointed for said sale;" and that the conveyance contains a power of attorney constituting the defendant attorney in fact for the deceased to make title to the purchaser of the lands If sold under the power of sale. The intestate died January 12, 1904, "and said defendant, as petitioner is informed and believes, does not claim there was anything due on said debt at the time of his death." Edwards threatens and intends to sell the lands under the power of sale, claiming that the amounts above stated are past due and unpaid, and has through his agent and attorney advertised in the "Atlanta Constitution" to sell the lands on the first Tuesday in August, 1905. This advertisement appeared first in the newspaper on July 7, 1905, and the time fixed for the sale as stated therein is the 1st day of August, 1905, being only 25 days from the date of the first insertion. The plaintiff avers that the sale will be illegal, and will cast a cloud upon the title; that the power of sale in said "mortgage or security deed" is revoked by the death of the maker; that the appointment of the creditor attorney in fact to execute a deed to the land when sold was revoked by the death of the maker; that as administrator has 12 months...
To continue reading
Request your trial
-
Abernathy v. Rylee, 17885
...but not both.' Webster's New International Dictionary (2d ed.), p. 77. For examples of alternative pleadings, see Baggett v. Edwards, 126 Ga. 463, 465, 55 S.E. 250, 251, where the plaintiff referred to an instrument 'in the alternative as a mortgage or deed'; and Fraser v. Smith & Kelly Co.......
-
Morehouse College v. Russell, 40221
...are followed or preceded by specific detailed averments, the general ordinarily must yield to the specific averments. Baggett v. Edwards, 126 Ga. 463, 55 S.E. 250; Palmer Brick Co. v. Chenall, 119 Ga. 837, 844, 47 S.E. 329; McClure Ten Cent Co. v. Humphries, 29 Ga.App. 524(1), 116 S.E. 54; ......
-
Frist v. U.S. 5 & 10 cents Stores, Inc.
...394, Davis v. Johnson, 92 Ga.App. 858, 90 S.E.2d 426, and ambiguous pleading is construed unfavorably to the pleader, Baggett v. Edwards, 126 Ga. 463(1), 55 S.E. 250, Holbrook v. Town of Norcross, 121 Ga. 319(1), 48 S.E. 922, and pleadings which are equivocal, doubtful and subject to differ......
-
Hames v. City of Marietta
...ambiguous, or couched in alternative expressions, they will, on demurrer, be construed most strongly against the pleader. Baggett v. Edwards, 126 Ga. 463, 55 S.E. 250; Krueger v. MacDougald, 148 Ga. 429, 96 S.E. 867; Doyal v. Russell, 183 Ga. 518, 534, 189 S.E. 32; Saliba v. Saliba, 201 Ga.......