Hodsdon v. Whitworth

Decision Date10 March 1980
Docket NumberNo. 59231,59231
Citation266 S.E.2d 561,153 Ga.App. 783
PartiesHODSDON v. WHITWORTH et al.
CourtGeorgia Court of Appeals

Truett Smith, Elberton, L. Eddie Benton, Jr., Commerce, Thomas L. Hodges, III, Elberton, for appellant.

Andrew J. Hill, Jr., Lavonia, James Horace Wood, Jefferson, for appellees.

McMURRAY, Presiding Judge.

In the purchase and sale of several tracts of land involving more than 600 acres located in Franklin County, Georgia, Stanley N. Hodsdon, as purchaser, conveyed by two separate deeds to secure debt to Whitworth Hatchery and Poultry Farm, Inc., the seller, two of the tracts of land, one being 50 acres, more or less, as shown by a certain plat and the other being 532.25 acres, more or less, as therein more particularly described, subject to a security deed from the seller to the Federal Land Bank of Columbia. Both of these instruments were styled as deeds to secure debt "WITH POWER OF SALE" and had changes in the acceleration clause by adding the typewritten language "upon giving 30 days notice as shown above." In the typed portion under the description we find the following: "In the event of Grantor's default in payment of that note herein secured, Grantee shall take this property in satisfaction of that debt hereby secured and shall hold Grantor harmless for any deficiency. In the event of said default, Grantee shall give to Grantor 30 days written notice of his (its) election to declare Grantor's default in which time Grantor may bring payments current. After which time, should said payment not be made, Grantor shall quit claim to Grantee all of his remaining interest in said property." Thereafter, the printed language in the deeds giving the grantee (Whitworth Hatchery and Poultry Farm, Inc.) the power of sale had marks thereon (as if made with a pencil or ink) marking out, or with the intent to mark out, the power of sale contained therein. These lines did not obliterate the language as to the power of sale but were slashes across and did contain in the margin initials of the grantor and initials of grantee's president.

After advertisement of sale under the alleged power of sale in the deed to secure debt, the 50 acre tract was sold before the courthouse door and repurchased by the grantee and conveyed by deed dated February 7, 1978, recorded February 9, 1978, from the grantor by and through his attorney in fact (the grantee) to the grantee. Prior to foreclosure plaintiff had quit-claimed the 532.25 acre tract to defendant corporation on June 24, 1977.

Stanley N. Hodsdon, the purchaser of the properties, and the grantor in the above security deeds, after the fact of foreclosure brought an action for damages couched in three counts against the grantee, Whitworth Hatchery and Poultry Farm, Inc., and its president, individually. Plaintiff alleges in Court 1 that the defendants in conspiracy illegally and wrongfully foreclosed a deed to secure debt which by its plain terms contained no power of sale, seeking general damages ($30,000), punitive damages ($100,000), and attorney fees ($10,000). In Count 2 he alleged the publication of the foreclosure advertisement was done with knowledge of its falsity and that it injured plaintiff in his trade and business and was therefore libelous. Plaintiff sought general damages ($100,000), punitive damages ($100,000), and attorney fees ($10,000). In Count 3 plaintiff alleges the publication of the false advertisement by defendants held plaintiff out to the public in a false light and was an invasion of his right to privacy. Plaintiff sought general damages ($100,000), punitive damages ($100,000), and attorney fees ($10,000).

The defendants answered, admitting jurisdiction, the advertisement and foreclosure of the property which they alleged was in accordance with the power contained therein, but otherwise denied the claim and by counterclaim alleged that they had been irreparably harmed and damaged by reason of the malicious prosecution of this suit, seeking damages in the amount of $250,000 each, $20,000 attorney fees, and $23,800 with reference to the release price on a 28 acre of land which plaintiff refused to pay after demand.

After a trial, the court directed the jury to return a verdict for the plaintiff on defendants' counterclaim, and the jury (without direction) then returned a verdict for the defendants on the main action. Whereupon judgment was entered in favor of the defendants with the costs taxed against the plaintiff. Plaintiff appeals. Held :

1. The substance of this case is based upon the printed language, the typewritten language, and the markings with reference to whether or not the parties intended by them to strike from the deeds to secure debt the power of sale clause contained therein. Plaintiff contended and so testified that these marks were made for this purpose and that he so initialed same at the closing. The defendant president of the corporation testified that the plaintiff wanted 30 days notice inserted as to the time the grantee was required to give in declaring the entire debt to be in default, and this was the only change in the instruments which he initialed but that he never noticed nor understood the other markings to be the striking out of the power of sale contained in these deeds. The attorney who prepared these documents was called as a witness but no testimony was elicited with respect to the markings shown on the deed to secure debt.

The trial court in its instructions to the jury after the completion of the evidence charged that the court, as a matter of law, found the deed to secure debt (alleged to have been wrongfully foreclosed) "to not be unambiguous," and that it was a question of fact for the jury to decide whether the parties intended that the deed to secure debt "did contain or was to contain a power of sale or not, and that is a question of fact for you to determine."

Code § 38-502 states that all contemporaneous writings shall be admissible to explain each other and that parol evidence shall be admissible to explain all ambiguities, both latent and patent. The court allowed direct testimony by the plaintiff that the power of sale provision was stricken out and initialed by the parties on the date of closing, hence there was no power of sale contained in the deeds to secure debt. Plaintiff contends that there was no ambiguity and therefore any parol evidence with respect thereto was inadmissible, citing Pippin v. Brigadier Industries Corp., 150 Ga.App. 401, 403(2), 258 S.E.2d 18. The defendant president, however, testified that he only agreed at the closing to the change of language which the plaintiff desired inserted with reference to notice and that he in nowise agreed to the striking out of the power of sale provisions therein. The trial court in its examination of the instruments was of the opinion that one could not ascertain with certainty the intentions of the parties with reference to the crisscross markings which could be inferred from the initials of the parties to disclose an intent to strike from the instruments the printed words. None of the printed language was obliterated from the instrument as this printed language was still...

To continue reading

Request your trial
11 cases
  • Foshee v. Harris
    • United States
    • Georgia Court of Appeals
    • 6 Marzo 1984
    ...506, 249 S.E.2d 319 (1978). See also Atlanta Baggage etc. Co. v. Loftin, 88 Ga.App. 98, 76 S.E.2d 92 (1953); Hodsdon v. Whitworth, 153 Ga.App. 783, 266 S.E.2d 561 (1980); Aetna Life etc. Co. v. Charles S. Martin Distributing Co., 120 Ga.App. 133, 169 S.E.2d 695 In the instant case the trial......
  • Aetna Finance Co. v. Culpepper, 68041
    • United States
    • Georgia Court of Appeals
    • 25 Junio 1984
    ...publication. See, e.g., Sale City Peanut, etc., Co. v. Planters & Citizens Bank, 107 Ga.App. 463, 130 S.E.2d 518; Hodsdon v. Whitworth, 153 Ga.App. 783(2), 266 S.E.2d 561; Mayo v. Bank of Carroll County, 157 Ga.App. 148(2), 276 S.E.2d 660. However, no such cause of action arises where the f......
  • Olympic Const., Inc. v. Drywall Interiors, Inc.
    • United States
    • Georgia Court of Appeals
    • 2 Septiembre 1986
    ...was to be withheld. The typewritten parts of a contract generally take precedence over conflicting printed parts. Hodsdon v. Whitworth, 153 Ga.App. 783, 266 S.E.2d 561 (1980); Aetna Life, etc., Co. v. Charles S. Martin Distrib. Co., 120 Ga.App. 133(2), 169 S.E.2d 695 (1969). However, all te......
  • White Oak Homes, Inc. v. Cmty. Bank & Trust
    • United States
    • Georgia Court of Appeals
    • 1 Marzo 2012
    ...omitted.) Stepp v. Farm, etc. Ins. Co., 222 Ga.App. 257, 259(2), 474 S.E.2d 108 (1996). Accord Nexgen, supra. 4. Hodsdon v. Whitworth, 153 Ga.App. 783, 788(5), 266 S.E.2d 561 (1980) (plaintiff's testimony as to whether third parties had asked him about the foreclosure advertisements was hea......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT