Redwine v. Frizzell

• Decision Date: 13 March 1937
• Docket Number: 11556.
• Citation: 190 S.E. 789,184 Ga. 230
• Parties: REDWINE et al. v. FRIZZELL et al.
• Court: Georgia Supreme Court

190 S.E. 789

184 Ga. 230

REDWINE et al. v. FRIZZELL et al.

No. 11556.

Supreme Court of Georgia

March 13, 1937

Judgment Adhered to After Rehearing March 26, 1937.

Error from Superior Court, Fulton County; Hugh M. Dorsey, Judge.

Suit by Mary Hill Redwine and another against W. R. Frizzell and others.Demurrers to the petition were sustained and the petition was dismissed, and plaintiffs bring error.

Affirmed.

RUSSELL C.J., dissenting.

JENKINS J., dissenting in part.

Norman I. Miller, of Atlanta, for plaintiffs in error.

W. H Armistead, J. V. Patrick, and W. O. Wilson, all of Atlanta, for defendants in error.

HUTCHESON Justice.

In the petition of Mary Hill Redwine and Randall Redwine against W. R. Frizzell, J. M. George, marshal, and W. M. Sparkman, deputy marshal of the municipal court of the city of Atlanta, W. H. Armistead, J. L. Patrick, and Myron M. Armistead, they sought injunction against execution of a dispossessory warrant, and cancellation of a security deed executed by Mary Hill Redwine, of notes evidencing the debt which the deed was given to secure, and of deed executed pursuant to a power of sale contained in the security deed.To the sustaining of demurrers and dismissal of the petition the plaintiffs excepted.The following is a substantial statement of the facts and contentions as they appear from the allegations of the petition and the attached exhibits:

The plaintiffs have been residing on the property in dispute for the past twenty-five years.(The petition does not disclose the relationship of Randall Redwine to Mary Hill Redwine, or his age, other than what may be gathered from the above allegation.)Mary Hill Redwine, hereinafter referred to as plaintiff, after the death of her husband who died seized of the property in dispute, continued to reside on the property, and in 1935she borrowed on a 90-day note $1,000 with which to pay taxes and repairs on the property.Desiring to take up the loan, the matter of securing the amount necessary was taken up with W. H. Armistead and Patrick, attorneys, who agreed to make the loan.Upon going to their offices, Randall Redwine was informed by W. H. Armistead that he was putting up the money.The papers (presumably the notes and security deed) were presented to plaintiff, but were not read or explained to her.She is nearing 75 years of age, and can barely read with glasses, and on this occasion had no glasses with her.The amount needed to retire the 90-day loan was $1,067, which with $33 to one Harrison totaled $1,100, and these represented the only items plaintiff"knows of as having been paid out of the proceeds of said alleged loan transaction."The notes signed by her aggregated $1,750, and the security deed recited that amount as its consideration, and named W. H. Armistead, agent, as grantee.On the $1,100 so paid out the interest computed at 6 per cent. for the period of the loan amounts to $412.50, which added to the principal amounts to $1,512.50.The $237.50 difference between this amount and the actual amount of the notes is alleged to be usury.After crediting the amount paid by petitioner on the loan to the principal, a portion of an installment still remains unpaid.

The following transfers of the security deed appear on the face of the record: "For value received, I hereby transfer, assign, and convey unto J. L. Patrick all my right, title, interest, power, and option in and under the within deed to secure loan, as well as the land described therein, and the indebtedness secured thereby, without recourse on me, but with full recourse on the property.In witness whereof I have hereunto set my hand and seal, this Dec. 2, 1935.[Signed]W. H. Armistead, Agent for J. L. Patrick.""For and in consideration of the sum of $1400 I hereby trans., sell, assign, and convey unto Myron M. Armistead all my right, title, interest, powers, and option in and under the within deed to secure loan, as well as the land described therein and the indebtedness secured thereby.In witness whereof I have hereunto set my hand and seal, this Dec. 2, 1935.[Signed]J. L. Patrick(Seal)."Both transfers were properly witnessed.It is alleged that the transfers were insufficient to convey the right to exercise the power of sale in the security deed; that this right was not assignable; that the first transfer above was ineffectual as such, because not under seal; and that the taking of the security deed in the name of W. H. Armistead, agent, and the subsequent "pretended" transfers, were but a scheme to becloud the identity of the real party or parties"interested in the aforesaid transaction in which items aggregating $1100 were paid out for the purposes" stated.The security deed contains the following provisions: "Party of the first part hereby covenants that she is lawfully seized and possessed of said property, and has a good right to convey it, and that it is unencumbered," and "covenants and agrees that in case of any default * * * the said principal note * * * shall, at the option of the party of the second part, or assigns, then and thereby become due and payable," and "in case the debt hereby secured shall not be paid when it becomes due by maturity in due course, or by reason of a default as above provided, the party of the second part, or assigns, may enter upon said premises and collect the rents and profits thereof, and may sell the said property at auction at the usual place for conducting sales at the court-house in the county where the land lies, in said State, to the highest bidder for cash, first giving four weeks notice of the time, terms, and place of such sale, by advertisement once a week in a newspaper published in said county, all other notice being hereby waived by said party of the first part (and said second party or any person on behalf of said second party, or assigns, may bid and purchase at such sale) and thereupon execute and deliver to the purchaser at such sale a sufficient conveyance of said premises in fee simple, * * * and the said first party hereby constitutes and appoints the said party of the second part and assigns, the agent and attorney in fact of said first party."

The material portions of the advertisement of sale are as follows: "By virtue of the power of sale contained in a security loan deed executed by Mary Hill Redwine to to W. H. Armistead, agent for J. L. Patrick, dated July 16, 1935, same being transferred to Myron M. Armistead, December 2, 1935, and recorded in deed book 1510, page 155, Fulton County records, said deed being given as security for the payment of 75 notes of $23.35 each, payable monthly, the power of sale being authorized upon the failure of the makers of said deed to pay said notes upon their maturity, and notes 5 and 6 inclusive having matured and being unpaid, there will be sold at public outcry before the courthouse door in said county, during the legal hours of sale, on the first Tuesday in March, 1936, to the highest bidder for cash," the property in dispute."Said sale will be held for the purpose of paying said indebtedness, and the expenses of this procedure.Sold as the property of Mary Redwine.[Signed]Myron M. Armistead as attorney in fact for Mary Redwine."Frizzell bid in the property at the sale, and a deed containing proper recitals was executed to him by Myron M.

Armistead as attorney in fact for Mary Redwine.It is alleged that the advertisement of sale was an unfair exercise of the power contained in the security deed, for the reason that the advertisement did not state that the whole debt was due or the amount thereof, did not recite that the holder of the security deed had exercised his option to declare the whole debt due, did not show from whom the holder secured his right, title, and interest in the deed, and was too uncertain and indefinite as to the time of sale; and that all of these facts tended to and did chill the bidding at the sale.On May 4, 1936, the property involved was set apart to the plaintiff as a year's support, and she contends that as such it was not subject to the debt secured by the deed, and that the sale under power was ineffectual to pass any title; that "while the purported consideration on said deed to W. R. Frizzell is $1500,"plaintiffs"are informed and believe and charge the fact to be true that such claimed consideration is fictitious, * * * and that the aforesaid acts of said Armistead named as grantee in the alleged security deed, * * * whereby he secured said deed and the alleged transfer of the alleged security deed from Armistead to Patrick and from the latter to Myron M. Armistead, and the bidding in of said property by said Frizzell, were in pursuance of collusion between the said Armistead, Patrick, and Myron M. Armistead and Frizzell to acquire the said property fraudulently and secretly for less than its value."It is not alleged that the plaintiff has not received credit for the amount bid at the sale by Frizzell, nor is the value of the property alleged.

1."Although the security deed which contained the power of sale was under seal, this fact did not make it necessary that transfers and conveyances of the indebtedness and security should also be under seal.Atlanta, Knoxville, etc., Ry. Co., v. McKinney,124 Ga. 929 (5)53 S.E. 701, 6 L.R.A. (N.S.) 436, 110 Am.St. Rep. 215;49 C.J. 1288, § 119. The situation is different from that in which an agent attempts to execute an instrument under seal, where his appointment was not so made.United Leather Co. v. Proudfit, 151 Ga. 403, 107 S.E. 327."Wardlaw v. Woodruff,178 Ga. 240, 248, 173 S.E. 98, 102.

2.The transferee of the security deed "having become the owner of the title conveyed by the security deed and also of the indebtedness secured thereby, and the power of sale...