Delray, Inc. v. Piedmont Inv. Co.

• Decision Date: 17 June 1942
• Docket Number: 14164.
• Citation: 21 S.E.2d 420,194 Ga. 319
• Parties: DELRAY, Inc., v. PIEDMONT INV. CO. et al.
• Court: Georgia Supreme Court

21 S.E.2d 420

194 Ga. 319

DELRAY, Inc., v. PIEDMONT INV. CO. et al.

No. 14164.

Supreme Court of Georgia

June 17, 1942

Rehearing Denied July 16, 1942.

Syllabus by the Court.

1. The motion that the clerk of the trial court be directed to transmit to this court exemplifications of certain papers or orders of record in his office is denied, it appearing from a brief of the movant that such portions of the record as are contemplated by the motion are immaterial in view of other portions of the record which have already been transmitted.

2. A bill of exceptions wherein the only assignment of error challenges the correctness of a judgment denying a motion for new trial may not be amended by an attempt, after the case reaches this court, to assign error on the direction of the verdict, the verdict having been directed on November 6 1941, and the bill of exceptions certified on March 2, 1942 no complaint of the direction of the verdict being contained in the motion for new trial. Herndon v. State, 178 Ga. 832, (1 a), 174 S.E. 597; Stewart v. Marietta Trust &amp Banking Co., 129 Ga. 417(3), 59 S.E. 231; Winn v State, 124 Ga. 811, 53 S.E. 318.

3. One of the covenants in a security deed providing that the grantor 'will keep the houses on said premises insured against fire and lightning, in an insurance company or companies acceptable to second party [the grantee], or assigns, for at least seven thousand dollars, with loss, if any, payable to said party' (the grantee), and further providing that 'if she [the grantor] should fail to maintain the insurance as herein provided for, * * * then, in either of said events, all of said notes secured by this deed shall at once become due and collectible at the option of the holder,' and that upon default the grantor might exercise a power of sale therein contained, and the instrument also providing that all other notices were waived by the grantor except notice of the place and time of such sale by advertising once a week for four weeks, a sale thereof under the power will not be invalidated on account of the fact that no notice was given to the grantor of the cancellation by the insurer of policies of insurance on the building.

Nor under such circumstances is the holder of a junior security deed executed by the grantor in the first deed entitled to such notice. Compare Redwine v. Frizzell, 184 Ga. 230(3), 234, 190 S.E. 789.

4. The right of the holder of the first security deed containing the foregoing provision, upon the cancellation of such policies and while the property was insured, to elect to treat the debt as due, and under the exercise of the power of sale to advertise and sell the property, is unaffected by the fact that thereafter, and before the day of sale, the holder of the junior security deed procured the issuance of insurance protection on the property, as the grantor had covenanted to do. Compare Cunningham v. Moore, 60 Ga.App. 850, 5 S.E.2d 71.

5. The evidence, the admission of which is complained of in the motion for new trial did not bear on the controlling issues in the case; and it need not be determined whether, as an abstract question, the same was admissible over the objections urged, since irrespective thereof the evidence as a whole was such that the verdict rendered was the only legal finding the jury could have made.

6. It was not erroneous to refuse a new trial.

This is a suit by Delray Incorporated against Piedmont Investment Company and L. H. Glore, to enjoin a sale of real estate under a power of sale in a security deed given by Mrs. H. Levitsky to H. A. Glore, and by H. A. Glore, transferred to L. H. Glore, and for appointment of a receiver. By amendment cancellation was sought of the deed made in pursuance of the power of sale. The sale having taken place pending the filing of the suit, the judge refused to grant an injunction. The security deed contained the power of sale, and the provision that the grantor should keep the houses on the premises insured against fire and lightning, in an insurance company acceptable to the grantee for at least seven thousand dollars, and that upon failure to maintain such insurance, the holder of the security deed would have the right to declare the indebtedness due before maturity; and a further provision to the effect that upon failure to perform any of the covenants contained in the deed, the debt should then be declared due and collectible. Delray, Inc., was the holder of a second security deed. It asserted in the suit that after default had occurred in any of the terms of said security deed, this would give the holder of the deed a right to exercise the power of sale referred to therein. The jury returned a verdict in favor of the defendant. A motion for new trial was overruled, and the plaintiff excepted. The bill of exceptions recites that the verdict was directed by the court on November 6, 1941. There is no complaint in the motion for new trial of the fact that the verdict was directed. One of the defendants in error, L. H. Glore, moved to dismiss the writ of error, on the ground that the only substantial relief sought was injunction, and that since the property was sold pending the litigation seeking to enjoin the sale, the question is moot. The plaintiff moved to amend the bill of exceptions by adding, after a recital that the judge directed the verdict, the following words, 'which ruling the plaintiff in error assigns as error as being contrary to law, because the pleadings and the evidence show issues which should have been submitted to the jury.' The plaintiff moved also that the court order the clerk of the trial court to transmit to this court exemplifications of the following papers in his office, to wit:

'1. Exceptions pendente lite filed by plaintiff, January 11, 1942.

'2. Order on exceptions...