Bowman v. Poole

• Court: Georgia Supreme Court
• Writing for the Court: CANDLER
• Citation: Bowman v. Poole, 212 Ga. 261, 91 S.E.2d 770 (Ga. 1956)
• Decision Date: 14 February 1956
• Docket Number: No. 19212,19212
• Parties: Dora Lee BOWMAN, Administratrix, v. John J. POOLE.

Page 770

91 S.E.2d 770

212 Ga. 261

Dora Lee BOWMAN, Administratrix, v. John J. POOLE.

No. 19212.

Supreme Court of Georgia.

Feb. 14, 1956.

Rehearing Denied Feb. 29, 1956.

This litigation was instituted by Dora Lee Bowman, as administratrix of Fred E. Bowman's estate, against John J. Poole, and in substance her amended petition alleges: Fairview Terrace, Inc., on February 7, 1944, conveyed certain described realty in the City of Atlanta to Atlanta Federal Savings & Loan Association to secure a debt of $4,700. On December 10, 194, Fairview Terrace, Inc., conveyed the same property by warranty deed to Frank K. Bowman, and the grantee as a part of the consideration therefor assumed payment of the balance due on the Atlanta Federal Savings & Loan Association's loan. Frank K. Bowman by a loan deed, which was executed on April 26, 1946, conveyed the same property to Fred E. Bowman to secure a loan of $1,080. Since May 4, 1948, and until December, 1954, Fred E. Bowman and the plaintiff have regularly paid the monthly installments of $46.05 due on the Atlanta Federal Savings & Loan Association's loan. On December 19, 1954, Mrs. Margaret Hills Fairleigh and Poole, Pearce & Hall, attorneys, claiming a lien on the property in question for legal services rendered Joanne W. Bowman, widow of Frank K. Bowman, by court order, obtained possession of it. They received the rents from it, but failed and refused to pay the installments due on the Atlanta Federal Savings & Loan Association's loan for the months of January and February, 1955. On February 3, 1955, the defendant Poole paid Atlanta Federal Savings & Loan Association $3,378.80 as the balance due on the loan and took a transfer and assignment of its note and security deed from Fiarview Terrace, Inc. Under an accelerating clause in the loan instruments, the defendant Poole declared the entire debt due, and pursuant to a power of sale contained in the assigned security deed, advertised the property for public sale on the first Tuesday in March, 1955. In order to protect the interest of her intestate, as the holder of a junior security deed, the plaintiff, on February 25, 1955, tendered the defendant Poole $3,771.68, the full amount then due him as transferee of the assigned loan, and demanded a transfer of it to her. The defendant Poole took the tendered money, counted it, handed it back to the plaintiff and refused to make a transfer and assignment of the loan instruments. On the first Tuesday in March, 1955, he exposed the property for public sale, bid it in for a consideration of $4,975, and as attorney in fact for Fairview Terrace, Inc., conveyed it to himself. By his refusal to accept the full amount due him on the assigned loan, and by his subsequent sale of the property at public auction, the defendant Poole acted in bad faith and the plaintiff is entitled to recover from him the sum of $500 as attorney's fees. By her petition, the plaintiff made a continuing tender of the full amount due the defendant Poole.

There are prayers that the sale of the property be declared null and void; that the deed made pursuant thereto be canceled; that the defendant Poole be required to transfer the loan instruments to the plaintiff on payment of the full amount due him; that the plaintiff have a judgment for $500 against the defendant Poole for attorney's fees; and that she be granted such other and further relief as may be meet and proper.

The petition was dismissed on general demurrer, and the plaintiff excepted.

Jas. L. Moore, Atlanta, for plaintiff in error.

Edwin Pearce, Poole, Pearce & Hall, Margaret Fairleigh, Atlanta, for defendant in error.

Syllabus Opinion by the Court

CANDLER, Justice.

1. The holder of a junior security deed is equitably entitled, when it is necessary for his protection, to pay the holder of a prior security deed who is proceeding to sell the pledged...