Oliver v. Slack

• Decision Date: 15 April 1941
• Docket Number: 13573.
• Citation: 14 S.E.2d 593,192 Ga. 7
• Parties: OLIVER v. SLACK et al.
• Court: Georgia Supreme Court

14 S.E.2d 593

192 Ga. 7

OLIVER v. SLACK et al.

No. 13573.

Supreme Court of Georgia

April 15, 1941

Frank B. Stow, Howard Oliver, and Oliver & Oliver, all of Gainesville, for plaintiff in error.

Joseph G. Collins, of Gainesville, for defendants in error.

Syllabus Opinion by the Court.

JENKINS Justice.

1.Under the codified, long-recognized maxim that 'he who would have equity must do equity, and give effect to all equitable rights in the other party respecting the subject-matter of the suit'(Code, § 37-104), a borrower who had executed a deed to secure debt is not entitled to an injunction against a sale of the property under a power in the deed, unless he first pays or tenders to the creditor the amount admittedly due.Biggers v. Home Building & Loan Association, 179 Ga. 429, 431, 176 S.E. 38, and cit.;Redwine v. Frizzell,184 Ga. 230, 237(10, 11), 190 S.E. 789;Latimer v. Lyon,177 Ga. 888, 171 S.E 562;Bigham v. Chamlee,148 Ga. 488, 97 S.E. 407;Pierce Trading Co. v. Blackshear,182 Ga. 649, 186 S.E. 721.See alsoGeorgia Baptist Orphans Home v Moon,14 S.E.2d 590, this day decided.The petition, in this suit for injunction against a sale under power in a security deed, showing an admitted indebtedness in the principal sum of at least $2,200, and the sworn pleadings and other evidence on which the question of interlocutory injunction was tried failing to show any tender of this amount, the court did not err, for the reason stated, in refusing an injunction.The statement in the petition that the actual total amount due is in dispute and not definitely settled, and that 'upon adjudication of [such amount] * * * petitioner stands ready, willing, and able to pay whatever amount may be found to be due on said debt,' would not dispense with or amount to the required tender of the admitted indebtedness.

2.A creditor, who holds a promissory note secured by a deed, is not put to an election of remedies as to whether he shall sue upon the note or exercise a power of sale contained in the deed, but he may do either, or 'pursue both remedies concurrently until the debt is satisfied.'Equitable Life Assurance Society v. Pattillo,37 Ga.App. 398, 400140 S.E. 403, 404;Franklin Mortgage Co. v McDuffie,43 Ga.App. 604, 608, 159 S.E. 599.See also the cases of this court, on which the Pattillo decision was based, as to the analogous principle that the grantee in a security deed may concurrently 'sue the...