Norwood Realty Co. v. First Federal Sav. and Loan Ass'n of Atlanta

• Decision Date: 09 June 1959
• Docket Number: No. 2,No. 37719,37719,2
• Citation: 109 S.E.2d 844,99 Ga.App. 692
• Parties: NORWOOD REALTY COMPANY v. FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF ATLANTA
• Court: Georgia Court of Appeals

Page 844

109 S.E.2d 844

99 Ga.App. 692

NORWOOD REALTY COMPANY v.FIRST FEDERAL SAVINGS & LOAN ASSOCIATION OF ATLANTA.

No. 37719.

Court of Appeals of Georgia, Division No. 2.

June 9, 1959.

Syllabus by the Court.

1.A creditor with notes secured by a deed to secure a debt is not put to an election, but may pursue his remedies under both instruments concurrently until he obtains a satisfaction of the debt under either.

2.A security deed which under its terms includes 'any future loans' from the grantee to the grantor will include subsequent amounts advanced by the grantee to the grantor to be used in the development of the same subdivision which is the subject matter of the original note and security deed.

3.The advertisement of the property described in the security deed pursuant to sale under power therein contained was not defective in any of the items contended.The grantee in a security deed may, by agreement between the parties, release his claim to a part of the land therein described in order that the grantor may sell the same and deliver good title to the purchaser, and the grantee may then foreclose upon the security remaining to him if the debt remains due and unpaid at its maturiry.

4.The grantee in the present security deed was not required to give notice to the grantor of his intention to exercise the power of sale ten days before the running of the first advertisement for such sale.

5.The evidence was sufficient to support a judgment of confirmation of sale under the exercise of the power contained in the security deed on the theory that the property, brought its fair market value at such sale, and the judgment rendered was not subject to exception on the ground that the court did not make a special finding therein to this effect.

The assignment of error on this appeal is the denial of the defendantNorwood Realty Company's motion for a new trial after judgment in favor of First Federal Savings & Loan Association of Atlanta on its petition filed in the Superior Court of DeKalb County to secure judicial confirmation of its sale of certain property in DeKalb County known as Drew Valley Subdivision under a power of sale in a deed to secure debt securing certain indebtedness of the defendant to the plaintiff.

It appears from the record in the case that the deed was executed on May 6, 1953, to secure a note in the sum of $3,420,000 and 'any extension of renewal thereof' and 'all future loans and advances made by grantee to grantor, or for grantor's benefit, but not to exceed twice the sum set forth on the first page hereof.'Six other notes advancing funds to be allocated to certain lots in the same subdivision were executed between that date and July 29, 1955, and certain sums repaid to the lender.On October 6, 1955, the plaintiff began a foreclosure proceeding.The defendant then filed a petition in the Superior Court of Fulton County alleging that the foreclosure was proceeding illegally; that a part of the debt therein claimed was usurious; that the debtor had tendered an amount in excess of what was actually owed, and praying for a permanent injunction against the foreclosure.Judgment in that case was one denying the injunction and finding the outstanding unpaid balance of principal and interest, as of July 29, 1955, to be in the amount of $696,599.63 less a credit of $39,426.33.The property was finally sold under the foreclosure proceedings on October 1, 1957, for $642,000, and the creditor brought the present action for confirmation thereof.

Young H. Fraser, Noah J. Stone, Atlanta, for plaintiff in error.

Johnson, Hatcher, Meyerson & Irvin, Henry M. Hatcher, Jr., Atlanta, for defendant in error.

TOWNSEND, Judge.

1.Code§§ 37-608, 37-609 and 37-610 provide for confirmation of a sale under power where the sale fails to realize the amount of the indebtedness and where it is reported to the judge of the superior court of the county in which the land lies within 30 days, provided the debtor had proper notice, the sale was duly advertised and regularly conducted and the property brought its true market value on the foreclosure sale.It is first contended by the plaintiff in error that the Fulton County action ended in a money judgment in favor of the bank, which must be enforced by execution under Code§ 37-1207 and constitutes a bar to the exercise of the power in the deed to secure debt.Even conceding that the injunction suit, in which no money judgment in favor of the bank was sought, constituted such a judgment as might be enforced by execution, the creditor is not put to an election of remedies in such case but may pursue both concurrently until his debt is satisfied by either.Oliver v. Slack, 192 Ga. 7(2), 14 S.E.2d 593.

2.It is next...