Crockett v. Oliver, 21899

• Decision Date: 07 February 1963
• Docket Number: No. 21899,21899
• Citation: 129 S.E.2d 806,218 Ga. 620
• Parties: C. C. CROCKETT et al. v. Moody B. OLIVER, Administrator, et al.
• Court: Georgia Supreme Court

Page 806

129 S.E.2d 806

218 Ga. 620

C. C. CROCKETT et al. v. Moody B. OLIVER, Administrator, et al.

No. 21899.

Supreme Court of Georgia.

Feb. 7, 1963.

Jones & Douglas, Dublin, for plaintiffs in error.

No appearance for defendants in error.

Syllabus Opinion by the Court

CANDLER, Justice.

A petition for equitable relief which Moody B. Oliver, individually and as temporary administrator of the estate of Mrs. J. B. Oliver filed against C. C. Crockett, a resident of Laurens County, and Charles M. Smith and Hazel Oliver Smith, as residents of North Carolina, alleges: Petitioner is the son of J. B. Oliver and Mrs. J. B. Oliver. Mrs. J. B. Oliver died July 10, 1957, and J. B. Oliver died on November 12, 1957. During her life and on January 3, 1955, Mrs. J. B. Oliver borrowed $1500 from Morris State Bank and conveyed to it by a security deed, which contains a power of sale, certain land in Laurens County and petitioner repaid all of the loan except $700. The defendant Charles M. Smith paid the balance due on such debt and the bank transferred and assigned its note and security deed to him, and he is under the terms of the security deed advertising the property for public sale of February 7, 1962, and will sell it at that time unless enjoined from doing so. It is also alleged that petitioner stands ready, able and willing to pay the defendant Charles M. Smith his $700 plus interest and any cost of transfer of said note and security deed to him and his offer of payment has been continuous since the note and security deed were transferred and assigned to him. There is a prayer that he be enjoined from making the sale.

The petition further alleges that J. B. Oliver executed a will on July 13, 1957, in which he bequeathed substantially all his property of the defendant Hazel Oliver Smith and nominated the defendant C. C. Crockett to be the executor of his estate; that his will was probated in common form in the Court of Ordinary of Laurens County on November 27, 1957, and Crockett qualified as executor. It is further alleged that J. B. Oliver lacked sufficient mental capacity to make a valid will; that his signature thereto was obtained by fraud; and that the defendants, though requested to do so by the petitioner, have refused to offer his will for probate in solemn form so as to afford him an opportunity to show its invalidity and there is a prayer that the purported will of J. B. Oliver be declared null and void. The petition further alleges that the defendant Charles M. Smith paid off and took a transfer and assignment of the note and security deed which Mrs. J. B. Oliver gave Morris State Bank as a part of a scheme on the part of all of the defendants to defraud other heirs of her estate and there is a prayer that he be enjoined from transferring or assigning such note and deed to any person. The petition also alleges that all of the defendants are insolvent and that the petitioner has no adequate remedy at law. There was no demurrer to the petition on the ground of multifariousness. General demurrers to the petition were overruled and the defendants excepted to those judgments. Held:

1. 'Under the codified, longrecognized maxim that 'he who would have equity must do equity, and give effect to all equitable rights in the other party respecting the subject-matter of the suit' (Code, § 37-104), a borrower who has executed a deed to secure debt is not entitled to an injunction against a sale of the property under a power in...