Smith v. Merchants and Farmers Bank of Milledgeville, s. 25926

• Decision Date: 10 September 1970
• Docket Number: 25927,Nos. 25926,s. 25926
• Citation: 226 Ga. 715,177 S.E.2d 249
• Court: Georgia Supreme Court
• Parties: Eudene R. SMITH v. MERCHANTS & FARMERS BANK OF MILLEDGEVILLE. MERCHANTS & FARMERS BANK OF MILLEDGEVILLE v. Eudene R. SMITH.

Page 249

177 S.E.2d 249

226 Ga. 715

Eudene R. SMITH v. MERCHANTS & FARMERS BANK OF MILLEDGEVILLE.

MERCHANTS & FARMERS BANK OF MILLEDGEVILLE v. Eudene R. SMITH.

Nos. 25926, 25927.

Supreme Court of Georgia.

Sept. 10, 1970.

Rehearing Denied Sept. 24, 1970.

Syllabus by the Court

1, 2. The Act of 1941 (Ga.L.1941, p. 487) (Code Ann. § 67-1308) is not unconstitutional when applied to deeds to secure debt executed after the effective date of such Act, nor is such Act unconstitutional for any other reason urged by the defendant.

3. Where the question of an indispensable party is expressly passed upon by the trial court it will be held that the plaintiff had the necessary opportunity to seek the addition of such party, but in the absence of any disclosure by the record of an intent to raise or pass upon such question in the trial court, such defect will be deemed an amendable defect.

The present action was filed to secure the cancellation of a security deed from the plaintiff's predecessor in title to the defendant bank, and to enjoin both temporarily and permanently the foreclosure of such security deed. The defendant filed numerous defenses including a constitutional attack upon a statute. The trial court sustained the constitutional attack and declared the statute unconstitutional. The plaintiff appeals from such judgment adverse to her while the defendant, by cross appeal, appeals from the judgment of the trial court overruling other defenses. The trial court signed a certificate of immediate review.

Gardner & Peugh, James E. Peugh, Milton F. Gardner, Milledgeville, for appellant.

Robert H. Herndon, Erwin Sibley, Milledgeville, for appellee.

NICHOLS, Justice.

1. The trial court relying upon the decisions in Todd v. Morgan, 215 Ga. 220, 109 S.E.2d 803, Hames v. Hames, 220 Ga. 595, 140 S.E.2d 844, and Drake v. Barrs, 225 Ga. 597, 170 S.E.2d 684, held the Act of 1941 (Ga.L.1941, p. 487) unconstitutional. Each of those cases dealt with a security deed executed prior to enactment of the 1941 Act, and each case held that as applied to a security deed executed prior to the effective date of such Act the Act was unconstitutional, but none of such cases held that the Act was unconstitutional as to a security deed executed after the effective date of such Act.

While an unconstitutional Act confers no authority upon anyone, and affords no protection to anyone, and it is really a misnomer to call such an Act of the General Assembly a law (Milam v. Adams, 216 Ga. 440, 444, 117 S.E.2d 343), yet it is also 'well settled that by numerous decisions of this court that where a part of an Act is valid and a part unconstitutional, the valid part will be upheld 'when it is reasonably certain that to do so will correspond with the main purpose which the Legislature sought to accomplish by its enactment, if, after the objectionable part is stricken, enough remains to accomplish that purpose. " Grimes v. Lindsey, 219 Ga. 779(2), 135 S.E.2d 860, and citations.

The Act of 1941, supra, as applied to deeds to secure debt executed after the effective date of such Act does not offend the constitutional provisions prohibiting retrospective legislation. Accordingly, the judgment of the trial court declaring such Act unconstitutional and striking allegations with reference to such Act must be reversed.

2. The enumerations of error relied upon in the cross appeal complain of the refusal of the trial court to sustain three additional attacks upon the constitutionality of the 1941, act, supra.

(a) It is contended that the Act is unconstitutional because the caption makes no reference to the duty of the clerk of the superior court to record deeds to secure debt while the body of the Act makes such provision and sets fees for such services. As was held in Williamson v. Housing Authority of Augusta, 186 Ga. 673, 679, 199 S.E. 43 (dissents on other grounds): 'The title of an act need only indicate the general object and subject-matter to be dealt with. It is not required that the title contain a synopsis of the law. Wright v. Fulton County, 169 Ga. 354(2a), 150 S.E. 262 and cases there cited. In Cady v. Jardine, 185 Ga. 9, 193 S.E. 869, it was said: 'It was never intended that the substance of the entire act should be set forth in the caption. It was not contemplated that every detail stated in the body should be mentioned in the caption. If what follows after the enacting clause is definitely related to what is expressed in the title, has a natural connection, and relates to the main object of legislation, and is not in conflict therewith, there is no infringement of the constitutional inhibition.' Then after quoting the title, or a portion of it, the court said: 'Any provision in the body which is germane to this general purpose as embraced in the title would not be violative of the constitutional provision. " The title to the Act of 1941, supra, reads as follows: 'An Act to limit the effect of and time for enforcing conveyances of real property to secure debt by providing for a reversion of title, when title shall revert, when powers of sale shall be exercised, and when suits to recover the property under such conveyances shall be brought, to provide the effective date hereof; and for other purposes.' This language is sufficiently broad to include the language complained of by the cross appellant.

(b) Complaint is made that the trial court erred in overruling the constitutional attack that the Act requires a different computation with reference to recorded and unrecorded conveyances and thus provisions of the Constitution prohibiting legislation impairing the obligations of a contract. Article, I, Section III, Paragraph II (Code Ann. § 2-302). Such provisions relate, as to contracts executed after the effective date of such Act, solely to remedy and do not impair the obligations of...