Fisher v. Great American Management & Inv.

• Decision Date: 20 February 1978
• Docket Number: No. 54960,No. 1,54960,1
• Parties: W. R. FISHER et al. v. GREAT AMERICAN MANAGEMENT AND INVESTMENT
• Court: Georgia Court of Appeals

Page 588

243 S.E.2d 588

145 Ga.App. 394

W. R. FISHER et al. v. GREAT AMERICAN MANAGEMENT AND INVESTMENT.

No. 54960.

Court of Appeals of Georgia,Division No. 1.

Feb. 20, 1978.

Rehearing Denied March 21, 1978.

Scheer & Elsner, William A. Gray, Robert A. Elsner, Atlanta, for appellants.

Powell, Goldstein, Frazer & Murphy, Bruce B. Weddell, Atlanta, for appellee.

SHULMAN, Judge.

This appeal is brought from an order confirming a sale under power in a deed to secure debt.

1. Appellants enumerate as error a finding by the trial court that there were no irregularities in the conduct of the sale. They allege that appellee chilled the bidding by advertising the sale as one for cash while intending to take a promissory note from the purchaser, a wholly-owned subsidiary of appellee corporation. They argue that persons with an interest in buying the property would have been discouraged by the necessity of paying cash. Appellee submits that the court's finding was authorized by the evidence and must be affirmed.

"Where under a power of sale in a security deed the grantee in case of default was authorized, on compliance with certain conditions, to sell the land described in the deed to the highest bidder 'for cash,' and the sale was duly advertised and auctioned on that basis, the sale was not rendered invalid by a subsequent arrangement between such grantee and the highest bidder, not the result of any previous agreement or understanding, whereby a note of the latter was accepted in lieu of cash, but the grantee would be accountable for the note as cash in settling with the debtor. (Cits.)" Adcock v. Berry, 194 Ga. 243(1), 21 S.E.2d 605.

The evidence concerning the alleged previous agreement to vary from the terms of the advertisement is equivocal. While it would authorize a finding that such an agreement or intent existed, it does not demand that conclusion.

"In confirmation proceedings the trial judge is the trier of fact. He presides as both judge and jury and his findings of fact shall not be set aside unless clearly erroneous. (Cits.)" Classic Enterprises v. Continental, 135 Ga.App. 105, 106, 217 S.E.2d 411, 412. Since the evidence here, though equivocal, authorized the court's finding, we cannot say it was clearly erroneous and cannot reverse on that ground.

2. The trial court's second conclusion of law in its order confirming the sale was, "The price bid at such sale was not in excess of the fair and true market value of said property on the date of such sale." Appellants contend that this conclusion is inconsistent with the requirement in Code Ann. § 67-1504 that the judge ". . . shall not confirm the sale unless he is satisfied the property so sold brought its true market value on such foreclosure sale." Therefore, they argue, the judgment is not supported by the conclusions of law and must be...