Summary
In Renfroe v. Butts, 192 Ga. 720 (16 S.E.2d 551), it was held that, although it was alleged that a tender had been made, the absence of an allegation that such tender was a continuing one caused it to be insufficient to stop the interest on the debt.
Summary of this case from Heath v. MillerOpinion
13840.
SEPTEMBER 12, 1941.
Petition for injunction. Before Judge Jackson. Baldwin superior court. May 20, 1941.
Sibley Allen, for plaintiff.
McCullar McCullar, for defendant.
1. The motion to dismiss the writ of error, on the grounds (a) that the record to be brought up was not sufficiently designated, and (b) that it does not specify the record to be brought up, is without merit.
2. This court will not give effect to a stipulation of counsel that what is certified to by the judge in the bill of exceptions be altered so as to substitute certain words for others contained therein. Compare Augusta Savannah Railroad Co. v. Lark, 97 Ga. 800 ( 25 S.E. 175); Minhinnett v. State, 106 Ga. 141 ( 32 S.E. 19); Clark v. State, 110 Ga. 911 ( 36 S.E. 297); Sigman v. Austin, 112 Ga. 570 ( 37 S.E. 894); Smith v. State, 118 Ga. 83 ( 44 S.E. 827); Shaw v. Henderson Lumber Co., 141 Ga. 47 ( 80 S.E. 322); Farmers Bank of Doerun v. Avery, 145 Ga. 449 ( 89 S.E. 409); Walker v. State, 153 Ga. 212 ( 111 S.E. 657); Coart v. State, 156 Ga. 536 ( 119 S.E. 723); Cutcliffe v. Lowry, 165 Ga. 287 ( 140 S.E. 752); Callaway v. Life Insurance Company of Virginia, 166 Ga. 818 ( 144 S.E. 381).
3. It is not a sufficient ground to enjoin a sale of property under a power contained in a security deed that some years before the date of the intended sale the grantor tendered to the grantee the full amount of the indebtedness, and that the grantee refused to accept the money so tendered, there being no averment that the tender was a continuing one, and no present offer to pay or to deposit the money in court.
( a) The Code, § 20-1105, does not declare that a tender properly made is equivalent to performance. The language is that it may be.
( b) Black v. Maddox, 104 Ga. 157 ( 30 S.E. 723), was a specific-performance case, and the tender was a continuing one.
( c) Citizens Mercantile Co. v. Easom, 158 Ga. 604 ( 123 S.E. 883), involved, not tender, but actual payment.
( d) In the instant case there was no prayer for cancellation of the security deed, or that the absolute title be decreed in the grantor, as was the case in Berry v. Williams, 141 Ga. 642 ( 81 S.E. 881).
( e) Although on application of the principle: "Even though a tender of the debt will, under some circumstances, forfeit the right of a pledgee to retain the security, still it does not settle or discharge the indebtedness" ( Glover v. Central Investment Co., 133 Ga. 62, 66, 55 S.E. 147; McCalla v. Clark, 55 Ga. 53; Bourquin v. Bourquin, 120 Ga. 115, 120, 47 S.E. 639; Bennett v. Southern Pine Co., 123 Ga. 618, 51 S.E. 654), the creditor refusing the tender might lose his security, the debt itself is not discharged. Under another principle that before a court of equity will hearken unto a suitor's prayer for equitable relief, he must offer to do full and complete equity to his adversary (Code, § 37-104; Autry v. Southern Railway Co., 167 Ga. 136 (4), 144 S.E. 741), the character of the tender indicated above was not such as to require interposition of the extraordinary powers of a court of equity.
4. The act approved February 23, 1937 (Ga. L. 1937, p. 481 et seq.), entitled "An act to amend section 37-607 of the Code of Georgia, relating to the construction and manner of exercise of powers of sale in deeds," etc., will not be so construed as to make it retrospective in its operation.
5. The order of dismissal by reasonable construction is limited to the general grounds of the demurrer. Therefore the special grounds will not be considered on review, but will be left for subsequent determination by the trial court. Linder v. Whitehead, 116 Ga. 206 ( 42 S.E. 358); Simpson v. Sanders, 130 Ga. 265, 271 ( 60 S.E. 541); Avery v. Bower, 170 Ga. 202 (3) ( 152 S.E. 239); Price v. Ketchum, 29 Ga. App. 179, 182-183 ( 115 S.E. 32), and cit. The foregoing does not conflict with Central Railroad v. Smith, 74 Ga. 112 (2), Smith v. Savannah, Florida Western Railway Co., 86 Ga. 195, 196 ( 12 S.E. 306), Griffith v. Finger, 115 Ga. 592 ( 41 S.E. 993), Dunaway v. Gore, 164 Ga. 219 (6) ( 138 S.E. 213), Magid v. Byrd, 164 Ga. 609, 612 ( 139 S.E. 61), Marion County v. McCorkle, 187 Ga. 312 (2) ( 200 S.E. 285), and similar decisions holding that error can not be assigned upon mere reasons given by the judge for the judgment rendered.
6. Construing the order excepted to, "that the injunction heretofore granted by the court is hereby dissolved," in the light of the bill of exceptions, as an order passed at the interlocutory hearing dissolving a previously granted restraining order, it was nevertheless permissible to assign error on such ruling in a bill of exceptions where error is also assigned on a judgment dismissing on demurrer a petition containing a prayer for injunction. This ruling is not in conflict with decisions, cited in Grizzel v. Grizzel, 188 Ga. 418, 421-422 ( 3 S.E.2d 649), holding that a writ of error will not lie to an order rescinding a previous restraining order. The order dismissing the plaintiff's case on demurrer being a final judgment, he could in the same bill of exceptions properly assign error on both rulings, although the ruling so far as it concerned the restraining order will not alone support a direct writ of error.
7. It was error to dismiss the action; and it being fairly apparent that the dissolution of the restraining order theretofore granted was based entirely on the erroneous view entertained by the judge that the petition praying for an injunction should be dismissed, direction is given that on reconsideration of the case the judge pass on the question of granting the temporary injunction de novo.
No. 13840. SEPTEMBER 12, 1941.
Only the ruling announced in the fourth headnote will be elaborated. This was a suit to enjoin a sale under a power contained in a security deed. The Judge dismissed the action and denied the extraordinary relief prayed for. The plaintiff excepted. The petition was filed on May 6, 1940. The date when the sale was advertised to take place is not given. It is alleged that C. T. Prosser died in the year 1929. Although no copy of the deed to secure debt is attached, it is alleged that its language vesting the power of sale is as follows: "The said C. T. Prosser, his agent, or legal representative may and by these presents is authorized to sell said property, . . and the said C. T. Prosser, his agent, or legal representative may make to the purchaser or purchasers of said property good and sufficient titles," etc. The petition states that the defendant, Mrs. Laura Bell Butts, is exercising said power of sale by virtue of being "a daughter of the grantee, and the assignee and transferee of said deed and all benefits and rights under said deed, and as the present owner of said deed and all rights thereunder by virtue of conveyances and transfers of said deed from the lawful representatives of the estate of C. T. Prosser deceased, and by virtue of being an heir of the late C. T. Prosser, and further by being the holder in fee simple of said deed and the land therein described by warranty deed from all of the heirs of the said C. T. Prosser, and further by being the lawful successor in title and in interest to said deed and said indebtedness evidenced thereby, and being the sole owner and lawful transferee and lawful assignee of all rights under said deed, the undersigned as successor in title and as the owner thereof as grantee in said deed and as attorney-in-fact for plaintiff will sell," etc. It thus appears from the allegations of the petition that she is not seeking to exercise the power as the agent or legal representative of C. T. Prosser. The judgment which is challenged contains a recital that "the court is of the opinion that under the Acts of 1937, page 482, that the plaintiff . . had the right to proceed as she attempted to do." It is manifest from the other portions of the order that the word "plaintiff" was inadvertently used for "defendant." Before the act of 1937, Code § 37-607 was as follows: "Powers of sale in deeds of trust, mortgages, and other instruments shall be strictly construed and shall be fairly exercised. In the absence of stipulations to the contrary in the instrument, the time, place, and manner of the sale shall be that pointed out for public sales." That act purported to do nothing more than to amend § 37-607 by adding at the end thereof the following: "Unless the instrument creating such power specifically provides to the contrary, a personal representative, heir, heirs, legatee, devisee, or successor of the grantee in a mortgage, deed of trust, deed to secure debt, bill of sale to secure debt, or other like instrument, or an assignee thereof, or his personal representative, heir, heirs, legatee, devisee, or successor, may exercise any power therein contained. A power of sale not revocable by death of the grantor or donor may be exercised after his death in the same manner and to the same extent as though such grantor or donor were in life, and it shall not be necessary, in the exercise or such power, to advertise or sell as the property of the estate of the deceased, nor to make any mention of or reference to such death."
At the date of the deed here involved, the power of sale therein, according to the petition, could be exercised only by the grantee, his agent or legal representative. The act of 1937, without declaring whether it is to act retroactively, or whether it looks only to powers thereafter created, merely amends the then existing Code section in the manner hereinbefore pointed out. May the defendant, being a daughter of the grantee and therefore an heir of his, exercise this power of sale conferred only on the grantee, his agent or legal representative, and contained in a deed executed before the date of the act? The rule for the construction of statutes is not to give them a retrospective operation, unless their language imperatively requires it. Bussey v. Bishop, 169 Ga. 251, 253 ( 150 S.E. 78); Walker County Fertilizer Co. v. Napier, 184 Ga. 861 ( 193 S.E. 770). The Code, § 102-104, declares that "Laws prescribe only for the future; they can not impair the obligation of contracts, nor, usually, have a retrospective operation." There is nothing in the amendatory act to indicate any intention of the law-makers to take it out of the general rule, and certainly no language that requires it; and this court will decline to read into it any such intention. It was not the purpose of the General Assembly in enacting it to do more than to provide for the exercise of certain powers of sale that might thereafter be conferred. The conclusion that it was not the intention of the lawmakers to give it any retrospective force makes it unnecessary to decide whether, if the contrary intent appeared, it would be void because in violation of the constitution, art. 1, sec. 3, par. 2 (Code, § 2-302), which prohibits the enactment of any retroactive law or law impairing the obligation of contracts. Compare Dennington v. Roberta, 130 Ga. 494 ( 61 S.E. 20); Ross v. Lettice, 134 Ga. 866 ( 68 S.E. 734, 137 Am. St. R. 281); Virginia-Carolina Chemical Co. v. Floyd, 159 Ga. 311 ( 125 S.E. 709); Morris v. Interstate Bond Co., 180 Ga. 689 ( 180 S.E. 819); McMullen v. Carlton, 192 Ga. 282 ( 14 S.E.2d 719).
Judgment reversed, with direction. All the Justices concur.