Berry v. Government National Mortgage Ass'n

202 S.E.2d 450, 231 Ga. 503, 1973 Ga. LEXIS 756

• Court: Supreme Court of Georgia
• Decided: December 3, 1973
• Docket: 28392
• Status: Published

Opinions

Undercofler, Justice.

Maggie Lee Berry filed a complaint seeking to have canceled and set aside the foreclosure sale of certain property in Fulton County, Ga. She alleges that the sale is void for stated reasons and because of her poverty she is unable to tender the past due payments under the note and security deed. The defendant moved to dismiss the complaint on the ground that the complainant was not entitled to equitable relief because no tender of the past due payments had been made. The trial court dismissed the complaint and the appeal is from this judgment. Held:

"He who would have equity must do equity, and give effect to all equitable rights in the other party respecting the subject matter of the suit.” Code § 37-104. Under application of this maxim, before the complainant would be entitled to equitable relief, she must do equity and tender the amount due under the security deed and note. Coile v. Finance Co. of America, 221 Ga. 584 (146 SE2d 304); O’Kelley v. Evans, 224 Ga. 49 (2) (159 SE2d 418); and Holcomb v. Approved Bancredit Corp., 225 Ga. 271 (167 SE2d 655).

Judgment affirmed.

All the Justices concur, except Gunter and Ingram JJ, who concur in the judgment only.