Opinion
27890.
SUBMITTED MAY 14, 1973.
DECIDED SEPTEMBER 6, 1973.
Injunction. Clarke Superior Court. Before Judge Barrow.
Ken Stula, for appellants.
Grady C. Pittard, Jr., for appellee.
Appellants, Clyde Loggins and his daughter, brought an action against North American Acceptance Corporation to enjoin the latter from foreclosing on realty pursuant to a power of sale contained in a deed to secure debt in favor of North American. The grantor in the deed to secure debt was deceased, and the appellants were the spouse and daughter of the deceased.
The indebtedness secured by the security deed was that of Clyde Loggins and the deceased. The indebtedness was admittedly in default unless the same should have been paid in full by the proceeds of a credit life insurance policy that insured the debtors of North American.
The trial judge enjoined the foreclosure pending a determination of whether the indebtedness should or should not have been paid by the death benefit proceeds from the alleged insurance coverage.
The case was tried before a jury; signed documents were introduced in evidence which showed unequivocally that Clyde Loggins, one of the debtors, was the only insured whose life was covered by the policy; he was still alive, one of the parties to the case, and one of the appellants here; and the trial judge therefore directed a verdict for North American.
The appellants' complaint had alleged that the deceased debtor was the insured under the policy, but in the face of the documents presented and introduced in evidence the appellants seemed to have changed their contention to the proposition that the deceased debtor "should" have been the insured in the credit life policy rather than Clyde Loggins, the other debtor who is still living.
The evidence showed plainly that Clyde Loggins was the insured, and that the deceased debtor was not the insured under the policy coverage. The trial judge properly directed a verdict in favor of the appellee.
Judgment affirmed. All the Justices concur.