Gilbert v. Dunn
| Decision Date | 03 December 1962 |
| Docket Number | No. 21840,21840 |
| Parties | J. Carl GILBERT v. Robert C. DUNN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where the undisputed evidence shows that one, by a series of partial payments paid the entire debt secured by a first security deed upon an agreement with the debtor that he would be subrogated to the rights and remedies of the creditor when payment in full was made, it was not error for the trial judge to take this question from the jury and decree that the deed was a first lien for the full amount of such payments, and to deny a later motion to set aside such decree.
This is the second appearance of this case in this court. The first appearance was to review the first grant of a motion for new trial and was affirmed by the court in Dunn v. Gilbert, 217 Ga. 358, 122 S.E.2d 93. The case seeks the cancellation of a security deed by the holder of a second loan deed against the same property. The petitioner alleges that the debt upon which the first loan deed was based has been paid in full, marked satisfied by the grantee and should be delivered up and canceled, but the same has now been transferred to the defendant who is seeking to exercise the power of sale contained therein, and he is therefore proceeding illegally against the property on which petitioner now claims a first lien. The prayers are for temporary injuction to stop the sale, for the security instrument thus paid in full to be delivered up and conceled, and for the petitioner's loan deed to be declared a first lien against the property. The answer, as amended, denies, in the main, the allegations of the petition and alleges that the creditors are indebted to him in the amount of $5600 and the debt has been transferred to him, and by cross-action alleges further that the debt which the petitioner claims against the property has been paid in full and the loan deed constitutes a cloud upon the title and should be delivered up and canceled.
At the new trial the court only submitted to the jury the issue as raised by the cross-action as to whether or not the second debt had been paid, reserving the other questions as matters of law from the evidence submitted. After the jury found for the petitioner that the second debt was still due and had not been paid, the court entered its final decree declaring the first loan deed sought to be canceled of record had not been satisfied, was a good transfer to the defendant and secured an indebtedness of $3,260 and was a first lien against the property for the above amount with the second debt as found by the jury being an inferior lien second to it.
The petitioner being dissatisfied with the judgment as to the ruling by the court on the questions taken from the jury but satisfied with the jury verdict and the portion of the judgment based thereon, filed a motion for reconsideration and to set aside the judgment on grounds that (1) it was contrary to law; (2) decidedly and strongly against the weight of the evidence; and (3) the evidence demanded a judgment in favor of the petitioner after the jury found in favor of the existence of the second debt, the first debt having been paid in full and the security deed should...
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Byers v. McGuire Properties, Inc.
...the rights and remedies of the creditor.'" Bankers Trust Co. v. Hardy, supra at 564, fn. 8, 640 S.E.2d 18. See also Gilbert v. Dunn, 218 Ga. 531, 533, 128 S.E.2d 739 (1962). Contrary to the trial court's order, such an agreement "is sufficient to overcome constructive notice of the interven......
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Financial Security Assur., Inc. v. Stephens, Inc.
...is made that the person paying the debt shall be subrogated to the rights and remedies of the original creditor." Gilbert v. Dunn, 218 Ga. 531, 128 S.E.2d 739, 740 (1962); State Farm Mut. Auto. Ins. Co. v. Cox, 271 Ga. 77, 515 S.E.2d 832, 833 (1999) (citation omitted). FSA argues that it ha......
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Financial Sec. Assur., Inc. v. Stephens, Inc.
...is made that the person paying the debt shall be subrogated to the rights and remedies of the original creditor." Gilbert v. Dunn, 218 Ga. 531, 128 S.E.2d 739, 740 (1962) (citation omitted); see also State Farm Mut. Auto. Ins. Co. v. Cox, 271 Ga. 77, 515 S.E.2d 832, 833 (1999). FSA argues t......
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Jones Motor Co. v. Anderson
...R. Co. v. Overnite Transp. Co., 223 Ga. 825, 830(6), 158 S.E.2d 387 (1967) (general principles of subrogation); Gilbert v. Dunn, 218 Ga. 531, 533, 128 S.E.2d 739 (1962) (claim for subrogation will lie in "those cases where the party claiming it advanced the money to pay the debt which, in t......