Stone v. Marshall & Co
| Decision Date | 14 February 1912 |
| Citation | 73 S.E. 826,137 Ga. 544 |
| Court | Georgia Supreme Court |
| Parties | STONE. v. MARSHALL & CO. |
(Syllabus by the Court.)
The maker of two promissory notes, calling for 8 per cent. interest after maturity, stipulated therein that, if they should be placed in the hands of an attorney for collection or adjustment, 10 per cent. upon the amount due should be paid as attorney's fees, to be included in judgment thereon as part of the principal. To secure the payment of the notes the maker conveyed to the payee land, and in the conveyances gave to the payee the right, in default of payment, to sell the land "at public outcry before the courthouse door of the county where the property is located, after an advertisement of once a week for two or more weeks in the public gazette where the sheriff advertises, and so deduct from the proceeds of such sale the amount due, including interest and attorney's fees, and all expenses incident to such sale, returning the overplus, if any there be, to me [the maker of the notes and deeds] or my legal representatives." The payee, claiming that there had been default in the payment of the notes, advertised the land for sale under the power given in the deeds. The maker of the notes and deeds filed a petition to enjoin such sale, upon the ground that he was not indebted in the amounts claimed. The defendant, in answer to the petition, set up that the amounts due on the notes were due and unpaid, and prayed for judgment against the plaintiff for the amount of the notes and interest thereon, and also for attorney's fees. The answer containing such prayer was filed during the trial term. A verdict was rendered in behalf of the defendant, in the action for injunction against the plaintiff therein, for given amounts as principal and interest on the notes, and 10 per cent. on principal and interest as attorney's fees. Held that, under the provisions of Civil Code 1910, § 4252, an obligation in a note to pay attorney's fees, in addition to the rate of interest specified therein, is void, and not enforceable, except in a suit upon the note where the defendant has been given 10 days' written notice by the holder of the note, his agent or attorney, before the institution of the suit, of his intention to bring suit, and also the term of the court to which it will be brought, and where the defendant fails to pay the note on or before the return day of the court to which the action is returnable. As these statutory provisions were not complied with, it was error, over proper and timely objection of the...
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Smith v. Bukofzer
... ... required, and the defendant fails to pay the note on or ... before the return day of the court to which the action is ... made returnable. Stone v. Marshall, 137 Ga. 544 (1), ... 73 S.E. 826. Such an obligation in a deed to secure debt is ... unenforceable, unless the notice required by this ... ...
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Smith v. Bukofzer
...and the defendant fails to pay the note on or before the return day of the court to which the action is made returnable. Stone v. Marshall. 137 Ga. 544 (1), 73 S. E. 826. Such an obligation in a deed to secure debt is unenforceable, unless the notice required by this section is given, and s......
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Boyd v. Bland
...in his directed verdict in favor of the plaintiffs. Civil Code, § 4252; Finch v. Cox, 18 Ga. App. 284(1), 89 S. E. 459; Stone v. Marshall & Co., 137 Ga. 544, 73 S. E. 826. 3. Under the rulings in the preceding notes the judgment is affirmed on condition that at the time the remittitur is ma......
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Boyd v. Bland
...in his directed verdict in favor of the plaintiffs. Civil Code, § 4252; Finch v. Cox, 18 Ga.App. 284(1), 89 S.E. 459; Stone v. Marshall & Co., 137 Ga. 544, 73 S.E. 826. Under the rulings in the preceding notes the judgment is affirmed on condition that at the time the remittitur is made the......