Moseley v. Rambo
| Decision Date | 04 March 1899 |
| Citation | 32 S.E. 638,106 Ga. 597 |
| Parties | MOSELEY v. RAMBO et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A power of sale in a mortgage given to secure a debt in part usurious may be exercised, at least, to the extent of collecting the principal, with lawful interest; certainly so when it is exercised with the acquiescence of the mortgagor.
2. When such a mortgage secures a debt maturing by installments, and the parties by a written agreement substitute a new amount for the total indebtedness, which relieves the transaction of usury, and fix the time for its payment on a given day, if payment be not then made the power of sale may be exercised.
3. Where such power authorizes the mortgagee to convey the premises to the purchaser as attorney in fact for the mortgagor, but the mortgagee conveys in his own name, it does not pass a legal title, but if, in other respects, properly executed, passes an equitable title, which constitutes a good defense, so far as damage to the freehold is concerned, to an action brought by the wife of the mortgagor, whose sole interest in the property is under a voluntary conveyance from her husband, made after the execution of the mortgage.
4. In view of the evidence in the record, there was no abuse of discretion in granting a second new trial.
Error from city court of Atlanta; H. M. Reid, Judge.
Action by Mattie Moseley against S.D. Rambo and others. There was a verdict for plaintiff, and a new trial was granted, and plaintiff brings error. Affirmed.
Jas. K Hines and M. A. Hale, for plaintiff in error.
J. D Rambo, G. K. Looper, and Clyde S. Brooks, for defendants in error.
Mattie Moseley alleged in her petition that W. H. Whitley, Lawrence R. Brooks, and S.D. Rambo unlawfully broke and entered her dwelling house, located on a certain lot (describing it) made a great noise and disturbance therein, tore the roof from the house of petitioner, defaced and broke the doors of her dwelling, and left the same uncovered, whereby her household furniture and goods, which were then, and are still, stored in said house, were greatly damaged by the constant rains which have ever since fallen thereon. She alleged that the trespass was accompanied by aggravating circumstances, both in the act and intent, and that she had been put to an expense of $50 in employing counsel to bring the suit. She alleged her damages, in consequence of the wrongs complained of, to be $1,000. It appeared on the trial of the case that H. D. Moseley, the original owner of the house and lot in question, created a mortgage on the same to secure a debt he was due to W. M. Jones, evidenced by 48 promissory notes, each for the sum of $8,--the first due on November 27, 1893, and one on the 1st day of each successive month thereafter, until all were paid. This mortgage was executed on October 27, 1893, and provided that, if the debt was not promptly paid in accordance with the tenor and effect of the notes, then W. M. Jones, the mortgagee, would be authorized to sell at public outcry, to the highest bidder for cash, the property mortgaged, for the purpose of paying the indebtedness and the expense of the proceedings, after first advertising the time and place of sale, etc. The mortgage further constituted Jones the attorney in fact of the mortgagor to make to the purchaser or purchasers of the property at such sale good and sufficient titles in fee simple to said property, thereby devesting out of the mortgagor all right title, or equity that he may have in and to the property mentioned, and vesting the same in the purchaser or purchasers at the sale. After the execution of this mortgage, H. D. Moseley, the mortgagor, made a voluntary conveyance of the property to his wife, Mattie Moseley, the plaintiff in this suit. There was default in the payment of the notes, and it seems that a difference arose between the mortgagor and mortgagee as to the amount due thereon. This difference was settled through their attorneys, and it was agreed that $185 should represent the indebtedness due on the notes, and that unless this sum was paid by January 1, 1895, the mortgagee should have a right to bring about a sale in accordance with the power conferred upon him in the mortgage. The property was duly advertised for sale in February, 1894, and was sold the following March, when Rambo, one of the defendants, became the purchaser, at the price of $125. It seems that at the time of sale the mortgagor and his wife were still living in the house on the premises, and it was afterwards agreed between the mortgagor and the agent of Rambo, the purchaser at the sale, that the mortgagor should pay rent to Rambo for his occupancy of the premises. It does not appear that any amount or term of rental was agreed upon. Rambo lived in Cobb county, and left the property in the care of his agent, C. L. Brooks, the brother of one of the defendants, who is not sued in this case; and C. L. Brooks employed Whitley, in August, 1894, to repair the house, and especially to place thereon a new roof. Whitley accordingly went out to the premises with Lawrence R. Brooks, one of the defendants. The evidence is decidedly conflicting as to what connection Lawrence R. Brooks had with the tortious acts complained of,--whether he took any part in directing the repairs, or whether he simply went there for the purpose of showing the contractor where the house was; having otherwise no connection whatever with the matter. The testimony is uncontradicted, however, that he was not the agent of Rambo, to look after this property. The carpenter tore the roof, or at least one side of it, from the house, and left it in that condition some three weeks, during which time it was constantly raining, and the household furniture of the plaintiff was thereby injured and damaged. It appears that no one was at the house when the carpenter commenced his work of tearing the roof therefrom; but the plaintiff arrived soon after the roof was taken off, and knew of the exposed condition of her furniture, and, it seems, took no steps to prevent the consequent injuries which resulted from rains of several days. There is no testimony in the record directly connecting the defendant Rambo with this alleged trespass. He was residing in Marietta, Ga.; and it does not appear that he was present, or gave any direction to his agent that the house should be repaired, during its occupancy by the plaintiff, in the manner in which it was done by the carpenter. In fact, the evidence tends to show that he knew nothing about plaintiff claiming title to the premises, nor of the alleged wrongs that had been done her, until after the institution of the suit. The jury returned a verdict for the plaintiff for $160. The defendants' motion for a new trial was granted. It seems there had been two verdicts for the plaintiff in this case, and this is the second grant of a new trial. To this judgment granting the second new trial, the plaintiff in error excepts, and also, in her bill of exceptions, alleges error in certain rulings of the court made pending the trial.
1. On the trial of the case, plaintiff offered testimony to show that the mortgage which had been introduced in evidence by the defendants was infected with usury, and was made as a part of a contract, and to evade the laws against usury, that the only consideration of the notes was $175, and that therefore, $209 thereof constituted a usurious interest charged on the loan. To the ruling of the court sustaining defendants' objection to the introduction of this testimony, the plaintiff excepted. It is insisted by counsel for plaintiff in error that the effect of usury in the mortgage was to render absolutely void the power of sale therein conferred upon the mortgagee, and that, therefore, no title whatever was conveyed to the purchaser at the sale under this power. We do not think this position is tenable. Usury does not render a mortgage void, in Georgia. Manifestly, had the mortgagee in this case proceeded to foreclose his mortgage by a regular proceeding in the superior court, a plea of usury could not have prevented him from obtaining a judgment for the principal of the debt, and the legal rate of interest thereon. The only effect of such a plea would have been to reduce the amount sued for by the amount of usury which the testimony showed to exist. Usury, therefore, not rendering void the contract, we cannot see how it renders void the power of sale conferred by the contract. This power of sale is nothing more than a remedy given to the creditor by the debtor for enforcing the payment of the debt without resorting to the courts for this purpose. Its evident intention was to save both time and expense in the collection of the debt, should there be default in its payment. It is a remedy, therefore, by contract, intended to substitute the remedy by law, should the creditor see fit to avail himself of the power conferred upon him by his debtor. The adoption of the contract remedy, and a sale thereunder, practically has the same effect as if there had been a sale by a judgment of foreclosure. This court has accordingly held, in Banking Co. v. Haas, 100 Ga. 111, 27 S.E. 980, that a power of sale in a mortgage becomes a part of the security for the debt, and, being conferred for the purpose of effectuating the same, was not recoverable, either by the mortgagor, or by the rendition of a judgment against him in favor of another creditor, and that, where the power was exercised by selling the land, this was equivalent to a sale under the foreclosure of the mortgage by a court of competent jurisdiction, and a bona fide purchaser at the sale obtained title free from the lien of judgments junior to the mortgage, though rendered before the exercise of the power. ...
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