Dutton v. Faulk

• Decision Date: 18 February 1925
• Docket Number: 4199.
• Parties: DUTTON v. FAULK ET AL.
• Court: Georgia Supreme Court

126 S.E. 718

159 Ga. 736

DUTTON v. FAULK ET AL.

No. 4199.

Supreme Court of Georgia

February 18, 1925

Syllabus by the Court.

Where money is loaned and the borrower executes a deed conveying to the lender one tract of land containing a large number of acres as a security for the debt, the lender has an absolute legal right, as between the parties, to enforce the collection of any judgment which he might obtain upon the debt by a sale of the land as one entire tract, although if sold in separate parcels a portion of the land might pay the debt. Reeves v. Bolles, 95 Ga. 402, 404, 22 S.E. 626; Howland v. Donehoo, 141 Ga. 687, 82 S.E. 32, L.R.A. 1917B, 513; Humphrey v. Smith, 142 Ga. 291 (2a), 82 S.E. 885.

Where property, as indicated in the preceding note, has been levied upon and advertised to be sold at the December sales under a fi. fa. based on a judgment for the secured debt, an agreement by the plaintiffs to give the defendant until the first day of the following January to borrow money or sell a portion of the property to enable him to pay the secured debt, without further benefit to the plaintiffs, is without consideration, and is unenforceable by the defendant. Bush v. Rawlins, 89 Ga. 117, 14 S.E. 886; Davis v. Morgan, 117 Ga. 504, 43 S.E. 732, 61 L.R.A. 148, 97 Am.St.Rep. 171; Willingham Sash & Door Co. v. Drew, 117 Ga. 850, 45 S.E. 237; Phinizy v. Bush, 129 Ga. 479 (6), 59 S.E. 259; 6 R.C.L. 664, § 73; 13 C.J. 351, §§ 207, 208.

The contract alleged in this case for delay of sale of the property being nudum pactum, even if it was sufficient in other respects, affords no ground to the defendant in fi. fa. for injunction to prevent the sale of the property at the December sales.

The motion to award damages on the ground that the case was brought to this court for delay only must be denied; the judgment to which exception is taken being the refusal of an interlocutory injunction, and not a money judgment. Furr v. Bank of Fairmount, 139 Ga. 815 (5), 78 S.E. 181.

Error from Superior Court, Effingham County; H. B. Strange, Judge.

Action between T. A. Dutton and W. H. Faulk, Jr., and others. Judgment for defendants, and plaintiff brings error. Affirmed.

R. W. Sheppard, of Guyton, and D. H. Clark, of Savannah, for plaintiff in error.

Clarence T. Guyton, of Guyton, for defendants in error.

ATKINSON, J.

Judgment affirmed.

All the Justices concur.