Ray v. Home & Foreign Inv. & Agency Co

Decision Date20 January 1896
Citation26 S.E. 56,98 Ga. 122
PartiesRAY. v. HOME & FOREIGN INVESTMENT & AGENCY CO., Limited, et al.
CourtGeorgia Supreme Court

Trust Deed—Power of Sale—Execution-Estoppel.

1. Where a deed to realty expressly recites that it is made to secure a specified promissory note, payable to the grantee or order, and confers upon "the holder of said note" a power of sale, it is sufficiently certain that such deed intended to confer, and did confer, this power upon the original grantee therein, whether, as matter of law, the power would or would not pass to his assignee of the note.

2. In the execution of such power by the grantee, it is not indispensably essential to the validity of a sale made thereunder that he should be actually present and personally conduct the sale.

3. One who, in dealing with a foreign corporation, borrows its money, and secures the loan by a deed to realty containing a power of sale, is estopped from denying the right of such corporation to have this power conferred upon it, or to exercise the same when conferred; nor will it be presumed, in advance, that such corporation, in the exercise of the power of sale, will not act through a duly-authorized officer or agent.

(Syllabus by the Court.)

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by L. R. Ray against the Home & Foreign Investment & Agency Company, Limited, and others. Judgment for defendants. Plaintiff brings error. Affirmed.

The following is the official report:

The petition of Ray alleged: On February 11, 1892, he executed to the Home & Foreign Investment & Agency Company, Limited, a deed to three parcels of land in Fulton county, Ga., describing them. Said company is a foreign and alien corporation, having its principal office and officers at Norwich, England. The deed was given, and it so recites, to secure the payment of a promissory note, with interest and cost of collection, made by petitioner to said company, for $2,000, to become due February, 1897. The deed further recites that, should there be any default in the payment of principal or interest, "on said note or either of them, " when due, then the holder of said note shall have the right to proceed, at law or equity, to collect the note and realize on said security, "or shall have the further right, power, and authority to sell said property herein described, at public outcry, to the highest bidder, at the courthouse door in said county, * * * after advertising the same once a week for four weeks, and convey the same by deed to the purchaser in as full and ample a manner as said party of the first part might do if personally present, and apply the proceeds of said sale, or so much thereof as may be necessary, to the satisfaction of the principal, interest, and attorney's fees that may be due on said note, as well as the cost of advertising said property for sale, and all other such reasonable expenses and charges as may be necessarily incurred in bringing said property to sale and conveying the same to the purchaser, and the said party of the second part shall pay over the surplus, if any, to said party of the first part or his assigns." To said principal note was attached five coupon notes for the annual interest. The first fell due February 1, 1893, and was duly paid. The second and third, for $160 each, fell due February 1, 1894 and 1895, respectively, and remain unpaid. Said company and its attorneys, Payne & Tye, wrongly claim that it or they have the right, under said power of sale, to sell the land, and with the proceeds pay said coupon notes and the principal note before the principal note becomes due, and have advertised the land for sale on the first Tuesday in August, 1895, at public outcry for said purpose, and threaten and intend to sell the same on said day. Said power of sale is not given to the company or its attorneys, but to whomever might at the time of default be the holder of the notes; and, as said holder is not named, and was not at the time of executing the power fixed and determined, the power of sale is void for uncertainty, and the company has not the right to sell the land as advertised. If the power is not void for uncertainty, it is a personal trust, and cannot be executed by the corporation unless the officer or member of the company who is to execute it be named therein. If it should be construed that the company, as the holder of the note, has the right, under the deed, to execute...

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