Ray v. Home & Foreign Investment & Agency Co.

• Decision Date: 20 January 1896
• Citation: 26 S.E. 56,98 Ga. 122
• Parties: RAY v. HOME & FOREIGN INVESTMENT & AGENCY CO., Limited, et al.
• Court: Georgia Supreme Court

26 S.E. 56

98 Ga. 122

RAY v. HOME & FOREIGN INVESTMENT & AGENCY CO., Limited, et al.

Supreme Court of Georgia

January 20, 1896

Syllabus by the Court.

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.

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.

W. R Hammond and L. R. Ray, for plaintiff in error.

Payne & Tye, for defendants in error.

ATKINSON J.

The facts appear in the official report.

1. It was urged upon this court, as one of the reasons why injunction should have been granted by the circuit judge that the power to sell, being conferred generally upon "the holder of the note" to secure which the deed was given, was too indefinite as to the personnel of the donee of the power to admit of its exercise by any one. Whatever may have been the force of that proposition as applied to one who became by assignment or indorsement the holder of the note, we encounter no difficulty in holding that the person sought to be enjoined was the very person upon whom the power was expressly conferred. The primary object sought to be accomplished by the execution of the deed was to secure to the payee of the note its payment, and by direct agreement with the payee the power was conferred upon the holder. The word "holder," at the date of the execution of the deed, meant the...