Smith v. Andrews

• Decision Date: 06 July 1976
• Docket Number: No. 1,No. 52216,52216,1
• Citation: 139 Ga.App. 380,228 S.E.2d 320
• Parties: W. J. SMITH, Trustee, etc. v. Watson ANDREWS, Trustee, et al
• Court: Georgia Court of Appeals

Page 320

228 S.E.2d 320

139 Ga.App. 380

W. J. SMITH, Trustee, etc. v. Watson ANDREWS, Trustee, et al.

No. 52216.

Court of Appeals of Georgia, Division No. 1.

July 6, 1976.

Rehearing Denied July 20, 1976.

Hansell, Post, Brandon & Dorsey, Gary W. Hatch, Atlanta, for appellant.

Harland, Cashin, Chambers, Davis & Doster, James R. Harland, Jr., Simuel J. Doster, Jr., Atlanta, for appellees.

STOLZ, Judge.

The mortgagee appeals from the order denying confirmation of his foreclosure sale of an apartment project to himself under the power of sale in his security deed. Held:

'In confirmation proceedings, the judge sits as a trier (or trior) of fact, and his findings and conclusions have the effect of a jury verdict. He hears the evidence and his findings based upon conflicting evidence should not be disturbed by a reviewing court if there is any evidence to support them. West v. West, 228 Ga. 397(1), 185 S.E.2d 763; Classic Enterprises, Inc. v. Continental Mortgage Investors, 135 Ga.App. 105, 217 S.E.2d 411. What value is, or may have been, is a question of fact to be resolved as others are. In so doing the trial court is the judge of the credibility of the witnesses and of the weight to be given the evidence. Classic Enterprises, Inc. v. Continental Mortgage Investors, 135 Ga.App. 105, 106, 217 S.E.2d 411, supra; Mustang Transportation, Inc. v. W. W. Lowe & Sons, Inc., 123 Ga.App. 350(3), 181 S.E.2d 85.' American Century Mtg. Investors v. Strickland, 138 Ga.App. 657(1), 227 S.E.2d 460. See also Thompson v. Maslia, 127 Ga.App. 758(4), 195 S.E.2d 238.

The issue in a confirmation proceeding is whether the property sold brought, at the time of the sale, its 'market value,' which has been defined as 'the price property would command in the market' (Black's Law Dict., Revd.4th Ed., citing State Hwy. Board v. Bridges, 60 Ga.App. 240, 3 S.E.2d 907) or 'the price which it will bring when it is offered for sale by one who desires, but is not obliged, to sell it, and is bought by one who wishes to buy, but is not under a necessity to do so.' Wachovia Mtg. Co. v. Moore, 138 Ga.App. 101, 102, 225 S.E.2d 460, 461 and cit. 'What it may have brought or what it may have been regarded as being worth on the market at times relatively close to the date of sale may be considered as aids in arriving at market value at the time of sale . . .' but even where there is evidence in the record of a different value after the sale, this is not controlling; '(i)f that were true a confirmation could always be attacked because of a subsequent change in value.' Thompson v. Maslia, 127 Ga.App. 758, 764(4), 195 S.E.2d 238, 243, supra. Contrary to the above principle, however, the trial judge, sitting as the trior of facts in this case, indicated during the confirmation hearing that he intended to consider, not evidence of a different value after the foreclosure sale, but the speculative market value at some indefinite time in the future. Thus his judgment was apparently based upon an erroneous theory of law.

I)t has been held that the reasons assigned by the judge are not a part of the judgment, (cits.), and that where the judgment of the trial court is proper and legal for any reason it will be affirmed, regardless of the reason assigned. (Cits.)' Turner v. Baggett Transportation Co., 128 Ga.App. 801, 806(4), 198 S.E.2d 412, 416. See also State of Ga. v. Johnson, 214 Ga. 607, 611, 106 S.E.2d 353; Hill v. Willis, 224 Ga. 263, 367(3), 161 S.E.2d 281; Cherry v. State, 135 Ga.App. 819(2), 219 S.E.2d 41. However, where, as here, the trial judge as the trior of facts indicates his intention to consider inadmissible matter, the 'right-for-any-reason rule' is not applicable, since we can no longer indulge the presumption that the trial judge selected the legal testimony and discounted the effect of the...