Lively v. Oberdorfer
| Decision Date | 09 March 1961 |
| Docket Number | No. 21166,21166 |
| Citation | 119 S.E.2d 27,216 Ga. 673 |
| Parties | W. W. LIVELY et al. v. Eugene OBERDORFER, Trustee, et al. |
| Court | Georgia Supreme Court |
Sams & Sams, Atlanta, for plaintiffs in error.
Sidney Haskins, Atlanta, Eugene Cook, Atty. Gen., Ben Johnson, Deputy Asst. Atty. Gen., Jos. J. Fine and Frank L. Conner, Atlanta, for defendants in error.
Syllabus Opinion by the Court
Eugene Oberdorfer, as trustee under the will of Albert Steiner, deceased, and as transferee of a deed to secure debt executed by Eunice Stewart to John F. Collins, filed his petition to foreclose the deed to secure debt as an equitable mortgage. W. W. Lively, who was alleged to be the holder of a general judgment inferior to the plaintiff's interest in the property, and others, were named as the defendants. The general and special demurrers of the defendant W. W. Lively to the petition were overruled, and the exception is to this judgment. Held:
1. In the present case general judgments rendered subsequently to the execution of the deed to secure debt would not take priority over a judgment rendered on the debt for which the deed to secure debt was given. A deed to conveyance to secure a debt, under the provisions of Code § 67-1301, passes the title to the property conveyed until the debt is fully paid. Hicks v. Morris, 183 Ga. 116, 187 S.E. 639; West Lumber Co. v. Schnuck, 204 Ga. 827, 51 S.E.2d 644; Potts v. McElroy, 209 Ga. 244, 247, 71 S.E.2d 612. 'Where the transferee of the debt secured by such deed reduces the same to judgment, all that is essential to the enforcement of a special lien in his favor is the rendition of a general judgment thereon, the conveyance by the vendee in the security deed to the defendant of the lands embraced therein, and proof aliunde that such judgment was rendered upon the secured debt.' Carlton v. Reeves, 157 Ga. 602(2), 607, 122 S.E. 320, and cases cited. See also Bush v. Bank of Thomasville, 111 Ga. 664, 666, 36 S.E. 900; Tripod Paint Co. v. Hamilton, 111 Ga. 823, 35 S.E. 696; Harvard v. Davis, 145 Ga. 580, 89 S.E. 740; Edwards v. Decatur Bank & Trust Co., 176 Ga. 194(2), 167 S.E. 292.
2. A deed to secure debt may be foreclosed as an equitable mortgage. Hester v. Gairdner, 128 Ga. 531, 533, 58 S.E. 165; Irons v. American Nat. Bank, 178 Ga. 160(3), 172 S.E. 629, and cases cited. The allegations of the petition in the present case stated a cause of action for the equitable foreclosure of the deed to secure debt.
3. Under the foregoing rules of law, the general judgment of the plaintiff in error may be enforced (as to the property described in the deed to secure debt) only to such...
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Cummings v. Johnson, 21839
...debt, under the provisions of Code § 67-1301, passes the title to the property conveyed until the debt is fully paid.' Lively v. Oberdorfer, 216 Ga. 673(1), 119 S.E.2d 27, and citations. Mrs. Agnes E. Hoffman being the holder of a deed to secure debt executed by Mrs. F. G. Clay during her l......
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In re Wheeler
...Georgia the grantee under a deed to secure debt, in this case United, holds legal title to the property in question. Lively v. Oberdorfer, 216 Ga. 673, 119 S.E.2d 27 (1961). United also held a power of sale. "A power of sale is a trust." Coleman v. Cabaniss, 121 Ga. 281, 48 S.E. 927 (1904).......
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American Ins. Co. v. Bateman, 46679
...of the appellant or plaintiff in error may not be assigned as error by him.' 5 C.J.S. Appeal and Error § 1497, p. 829; Lively v. Oberdorfer, 216 Ga. 673, 119 S.E.2d 27 and cit.; Hoffman v. Chester, 201 Ga. 447, 451, 39 S.E.2d 857. The American Insurance Company as a defendant here is intere......
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