Opinion
42981.
SUBMITTED SEPTEMBER 5, 1967.
DECIDED SEPTEMBER 12, 1967.
Foreclosure. Berrien Superior Court. Before Judge Lott.
Elsie H. Griner, for appellant.
Reinhardt, Ireland, Whitley Sims, Glenn Whitley, for appellee.
1. In this foreclosure of conditional sale contracts in the manner of mortgages under Code § 67-701 an affidavit meeting the general requirements of the Code section is sufficient to withstand a general demurrer or a motion to dismiss.
2. Three conditional sale contracts, covering three separate vehicles having been included in the foreclosure, and the defendant having alleged in his amended affidavit of illegality the tender of an amount sufficient to satisfy one of the contracts with a request that it be so applied, a striking of the amendment to the affidavit of illegality was error, but since the record shows that this amount has been accepted and the vehicle described in that contract has been released from the levy, the error is harmless.
3. Since the remainder of the amount alleged to have been tendered is insufficient to satisfy the remaining balances, and the defendant further alleges that at the time of the tender he requested that the notes be renewed in accordance with plaintiff's "previous custom," no legal defense was set out and striking the affidavit of illegality on oral motion as to the foreclosure of the other contracts was not error.
Judgment affirmed. Felton, C. J., and Hall, J., concur.