Adams v. Gwinnett Commercial Bank

Court of Appeals of Georgia

Adams v. Gwinnett Commercial Bank

230 S.E.2d 324, 140 Ga. App. 233, 1976 Ga. App. LEXIS 1421

CourtCourt of Appeals of Georgia

DecidedOctober 6, 1976

Docket52336

StatusPublished

Cited by22 cases

This text of 230 S.E.2d 324 (Adams v. Gwinnett Commercial Bank) is published on Counsel Stack Legal Research, covering Court of Appeals of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Adams v. Gwinnett Commercial Bank, 230 S.E.2d 324, 140 Ga. App. 233, 1976 Ga. App. LEXIS 1421 (Ga. Ct. App. 1976).

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Opinions

Bell, Chief Judge.

This is an action to confirm a sale of realty under Code Ann. § 67-1503. Plaintiff acting under the powers contained in a deed to secure debt, conducted a sale of real property of defendants. Plaintiff was the sole bidder at the sale and purchased the property for $180,000. At the confirmation hearing, testimony was adduced as to the value of the land which ranged from $174,875 according to plaintiffs appraiser, to a high of about $290,583 according to defendants’ experts. The trial court entered an order which stated that the court found ". . . that plaintiff has failed to prove by a preponderance of evidence that said property brought its fair market value on the date of sale. However, it appears to the Court that plaintiff acted in good faith by having said property appraised before the sale, and that while said sale should not be confirmed, plaintiff should be and is allowed to resell said property after proper advertisement. And it is so ordered, . . .” Held:

1. It is contended that the court erred as it gave the plaintiff the option to resell as opposed to ordering a resale which is contrary to Code Ann. § 67-1505. The latter provides in part: "The court may, for good cause shown, order a resale of the property.” The language that plaintiff "is allowed” to resell standing alone may possibly be susceptible to the construction plaintiff wishes placed on it which is contrary to the plain words of the statute. But when read as a whole, the meaning of the court’s order was that confirmation was denied and plaintiff was ordered to resell the property. When a judgment is susceptible of two meanings, one of which would render it legal and the other illegal, the court should give it that construction, if [234]*234reasonably possible, which would render it legal. Byrd v. Goodman, 195 Ga. 621 (25 SE2d 34).

2. In its petitionjplaintiff prayed only for confirmation of the sale. CPA § 54 (c) provides: "... Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings; but the court shall not give the successful party relief, though he may be entitled to it, where the propriety of such relief was not litigated and the opposing party had no opportunity to assert defenses to such relief.” Code Ann. § 81A-154 (c). Defendants make the argument that ordering a resale in this case was error under the above provisions of the Civil Practice Act as neither the propriety of a resale was litigated nor were they given the opportunity to assert matters in opposition to resale. This has no merit. The confirmation of sale statute is designed to protect a debtor from a deficiency judgment when the involuntary sale brings less than the true market value. A failure to sell for the true market value constitutes good cause for ordering a resale. Davie v. Sheffield, 123 Ga. App. 228 (180 SE2d 263). Thus we hold that in every confirmation of sale case, the issue of a resale is always raised regardless of whether it has been affirmatively pleaded in plaintiffs complaint if the defendant is afforded the opportunity to defend against confirmation as well as against a resale.

3. The trial court found as a fact that plaintiff had not proved by a preponderance of the evidence that it sold the property for its fair market value; but that plaintiff had acted in good faith by having the property appraised before the sale; and concluded that while confirmation should be denied, a resale was authorized. It is contended that these findings of fact and conclusions of law are insufficient to authorize a resale as "good cause” was not shown. Code Ann. § 67-1505 provides in part "The court may, for good cause shown, order a resale of the property.” The statute plainly grants a trial court the discretionary power to order a resale. We construed the above statute in Davie v. Sheffield, supra, to mean that where there is a "failure to sell for its true market value, the court may [235]*235order a resale.” Here there is evidence that the property did not bring its true market value, but that plaintiffs failure in this regard was not brought about by any failure to sell and buy the property intentionally at a price less than the true market value. Thus the findings of fact and conclusions of law are authorized. There was no abuse of discretion in ordering a resale.

Argued July 12, 1976 Decided October 6, 1976 Rehearing denied October 28, 1976 Webb, Fowler & Tanner, William G. Tanner, J. L. Edmondson, William W. Cowan, for appellants. G. Hughel Harrison, Thomas J. Andersen, for appellee.

Judgment affirmed.

Quillian, P. J., Webb, Marshall, McMurray and Smith, JJ., concur. Deen, P. J., Clark and Stolz, JJ., dissent.

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Bell, Chief Judge.

This is an action to confirm a sale of realty under Code Ann. § 67-1503. Plaintiff acting under the powers contained in a deed to secure debt, conducted a sale of real property of defendants. Plaintiff was the sole bidder at the sale and purchased the property for $180,000. At the confirmation hearing, testimony was adduced as to the value of the land which ranged from $174,875 according to plaintiffs appraiser, to a high of about $290,583 according to defendants’ experts. The trial court entered an order which stated that the court found ". . . that plaintiff has failed to prove by a preponderance of evidence that said property brought its fair market value on the date of sale. However, it appears to the Court that plaintiff acted in good faith by having said property appraised before the sale, and that while said sale should not be confirmed, plaintiff should be and is allowed to resell said property after proper advertisement. And it is so ordered, . . .” Held:

1. It is contended that the court erred as it gave the plaintiff the option to resell as opposed to ordering a resale which is contrary to Code Ann. § 67-1505. The latter provides in part: "The court may, for good cause shown, order a resale of the property.” The language that plaintiff "is allowed” to resell standing alone may possibly be susceptible to the construction plaintiff wishes placed on it which is contrary to the plain words of the statute. But when read as a whole, the meaning of the court’s order was that confirmation was denied and plaintiff was ordered to resell the property. When a judgment is susceptible of two meanings, one of which would render it legal and the other illegal, the court should give it that construction, if [234]*234reasonably possible, which would render it legal. Byrd v. Goodman, 195 Ga. 621 (25 SE2d 34).

2. In its petitionjplaintiff prayed only for confirmation of the sale. CPA § 54 (c) provides: "... Except as to a party against whom a judgment is entered by default, every final judgment shall grant the relief to which the party in whose favor it is rendered is entitled, even if the party has not demanded such relief in his pleadings; but the court shall not give the successful party relief, though he may be entitled to it, where the propriety of such relief was not litigated and the opposing party had no opportunity to assert defenses to such relief.” Code Ann. § 81A-154 (c). Defendants make the argument that ordering a resale in this case was error under the above provisions of the Civil Practice Act as neither the propriety of a resale was litigated nor were they given the opportunity to assert matters in opposition to resale. This has no merit. The confirmation of sale statute is designed to protect a debtor from a deficiency judgment when the involuntary sale brings less than the true market value. A failure to sell for the true market value constitutes good cause for ordering a resale. Davie v. Sheffield, 123 Ga. App. 228 (180 SE2d 263). Thus we hold that in every confirmation of sale case, the issue of a resale is always raised regardless of whether it has been affirmatively pleaded in plaintiffs complaint if the defendant is afforded the opportunity to defend against confirmation as well as against a resale.

3. The trial court found as a fact that plaintiff had not proved by a preponderance of the evidence that it sold the property for its fair market value; but that plaintiff had acted in good faith by having the property appraised before the sale; and concluded that while confirmation should be denied, a resale was authorized. It is contended that these findings of fact and conclusions of law are insufficient to authorize a resale as "good cause” was not shown. Code Ann. § 67-1505 provides in part "The court may, for good cause shown, order a resale of the property.” The statute plainly grants a trial court the discretionary power to order a resale. We construed the above statute in Davie v. Sheffield, supra, to mean that where there is a "failure to sell for its true market value, the court may [235]*235order a resale.” Here there is evidence that the property did not bring its true market value, but that plaintiffs failure in this regard was not brought about by any failure to sell and buy the property intentionally at a price less than the true market value. Thus the findings of fact and conclusions of law are authorized. There was no abuse of discretion in ordering a resale.

Argued July 12, 1976 Decided October 6, 1976 Rehearing denied October 28, 1976 Webb, Fowler & Tanner, William G. Tanner, J. L. Edmondson, William W. Cowan, for appellants. G. Hughel Harrison, Thomas J. Andersen, for appellee.

Judgment affirmed.

Quillian, P. J., Webb, Marshall, McMurray and Smith, JJ., concur. Deen, P. J., Clark and Stolz, JJ., dissent.

Kyle R. Weems, Trustee in Bankruptcy for Hamilton Mortgage Corporation, and the Federal Deposit Insurance Corporation, Liquidator for the Hamilton National Bank of Chattanooga v. Walter J. McCloud Ii, Walter J. McCloud Ii, and Charles S. Wilder, Jr., Kyle R. Weems, Trustee in Bankruptcy for Hamilton Mortgage Corporation, and the Federal Deposit Insurance Corporation, Liquidator for the Hamilton National Bank of Chattanooga, Cross-Appellants v. Walter J. McCloud Ii, Walter J. McCloud Ii, and Charles S. Wilder, Jr., Cross-Appellees

619 F.2d 1081 (Fifth Circuit, 1980)

Homes of Tomorrow, Inc. v. Federal Deposit Insurance

254 S.E.2d 475 (Court of Appeals of Georgia, 1979)

Britt v. Gwinnett Commercial Bank

253 S.E.2d 862 (Court of Appeals of Georgia, 1979)

Fleming v. Federal Land Bank

241 S.E.2d 271 (Court of Appeals of Georgia, 1977)

Federal Deposit Insurance v. Ivey-Matherly Construction Co.

241 S.E.2d 264 (Court of Appeals of Georgia, 1977)

Adams v. Gwinnett Commercial Bank

235 S.E.2d 476 (Supreme Court of Georgia, 1977)

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230 S.E.2d 324, 140 Ga. App. 233, 1976 Ga. App. LEXIS 1421, Counsel Stack Legal Research, https://law.counselstack.com/opinion/adams-v-gwinnett-commercial-bank-gactapp-1976.

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