Cochran v. Teasley

• Decision Date: 21 June 1977
• Docket Number: No. 32235,32235
• Citation: 239 Ga. 289,236 S.E.2d 635
• Parties: Mac H. COCHRAN et al. v. Marie A. TEASLEY et al.
• Court: Georgia Supreme Court

Page 635

236 S.E.2d 635

239 Ga. 289

Mac H. COCHRAN et al. v. Marie A. TEASLEY et al.

No. 32235.

Supreme Court of Georgia.

June 21, 1977.

Bray & Johnson, H. Michael Bray, Canton, for appellants.

Snell & Bishop, Donald J. Snell, Canton, for appellees.

HILL, Justice.

Purchasers of real estate sued for specific performance of a release provision contained in their deed to secure debt, for an injunction to prevent foreclosure, and for damages and attorney fees. Purchasers appeal from a summary judgment granted to the sellers and from denial of their own motion for summary judgment.

In 1973 purchasers bought real estate from sellers. Purchasers executed a deed to secure debt to sellers containing a release provision and a note for interest only in advance for 10 years. ¹ In 1975, before the annual interest payment became due, the promissory note was amended so as to reduce the payment due in 1975 and add the reduction to a payment due later. The amendment provided that "Except for these changes, the note will remain in full force and effect."

In 1976, before the annual interest payment became due and while purchasers were current in their obligations under the note as amended in 1975, purchasers requested release of acreage to which they were entitled by virtue of the down payment, but sellers refused to release because they expected that the interest payment due shortly would not be made. Purchasers later failed to make the interest payment. The trial court found as a fact that at the time they requested release, purchasers had decided not to make the 1976 annual interest payment.

The purchasers filed suit asking for specific performance of the release provisions, damages and attorney fees. The sellers began foreclosure proceedings and the purchasers sought to enjoin the foreclosure. Both parties moved for summary judgment on all issues. The superior court denied the purchasers' and granted the sellers' motion.

1. The release provision provided a specific formula to determine the amount of acreage to be released depending on the amount paid, provided expressly that purchasers would be entitled to release for cash paid at closing, provided alternative beginning points with the actual beginning point to be selected by purchasers, provided that subsequent releases (to be chosen by purchasers) must be contiguous to previously released acreage, and provided that unreleased acreage must have access to public road. The provision is sufficiently definite to be performed and hence is not so indefinite as to be unenforceable. 41 A.L.R.3d 7 at 44-54. No case has been cited to us and we have found none which requires that the description of the property to be released from a deed to secure debt be as specific as the description of the property in the deed itself must be. See Honea v. Gilbert, 236 Ga. 218, 223 S.E.2d 115 (1976).

2. The 1975 amendment extending the note was made while purchasers were current in their obligations and does not show any intention by the parties that the right of release be terminated in consideration for the extension. Sellers cite Leighton v. Macdaniel, 33 App.D.C. 480 (1909), and Gillies v. Dyer, 93 N.J.Eq. 635, 117 A 611 (1922), and argue that any extension in time for payment of the obligation cancels the right of release. In the cases cited the right of release was conditioned upon prepayment (that is, payment before maturity) and the extensions were granted after maturity of the obligations. Having failed to claim the right of release by prepayment before maturity, the buyer lost the right of release at maturity and it was not revived by the extension agreement.

3. The purchasers being in default, the trial court properly granted the sellers' motion for summary judgment so as to deny the enjoining of the foreclosure proceedings. A borrower is not entitled to enjoin...