Cadwell v. Swift & Co.

Supreme Court of Georgia

Cadwell v. Swift & Co.

162 S.E. 814, 174 Ga. 313, 1932 Ga. LEXIS 43

CourtSupreme Court of Georgia

DecidedFebruary 10, 1932

DocketNo. 8304

StatusPublished

Cited by8 cases

This text of 162 S.E. 814 (Cadwell v. Swift & Co.) is published on Counsel Stack Legal Research, covering Supreme Court of Georgia primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Cadwell v. Swift & Co., 162 S.E. 814, 174 Ga. 313, 1932 Ga. LEXIS 43 (Ga. 1932).

Pincite

Opinion

Atkinson, J.

1. A power of sale in a deed of trust, mortgage, or other

instrument is to be strictly construed and must be fairly exercised. In the absence of stipulations to the contrary in the instrument, the time, place, and manner of the sale should be that pointed out for public sales. Civil Code, § 4620. However, “that portion of the mortgage containing the power, like all other contracts, is to be construed so as to effectuate the intention of the parties, and the power must be exercised in accordance with the intention of the parties as indicated in the clause in the mortgage conferring the power.” Garrett v. Crawford, 128 Ga. 519-521 (57 S. E. 792, 119 Am. St. R. 398, 11 Ann. Cas. 167) ; Mathis v. Glawson, 149 Ga. 752 (3) (102 S. E. 351). Accordingly, where land located in Treutlen County is conveyed by deed as security for debt, and the deed contains a power of sale authorizing sale of the land in Candler County for collection of the debt, the sale in virtue of the contract should be held in Candler County.

2. Equity eases shall be tried in the county where a defendant resides against whom substantial relief is prayed. Civil Code, § 6540. A corporation of this State is not subject to a suit for equitable relief by injunction in a county other than that fixed by its charter as the county of its principal office. Etowah Milling Co. v. Crenshaw, 116 Ga. 406 (42 S. E. 709); Porter v. State Mutual Life Insurance Co., 145 Ga. 543 (89 S. E. 609); Georgia Land &c. Co. v. Savannah River Lumber Co., 150 Ga. 202 (103 S. E. 167). Accordingly, where a suit to enjoin exercise of a power of sale contained in a security deed is instituted in Treutlen County solely against a commercial corporation of this State, the principal office of which as fixed by its charter is in another county, the court is without jurisdiction.

3. Under the pleadings and the evidence, the action was improperly instituted in Treutlen County, and the judge did not err in refusing a temporary injunction. Judgment affirmed.

All the Justices concur.

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Atkinson, J.

1. A power of sale in a deed of trust, mortgage, or other

instrument is to be strictly construed and must be fairly exercised. In the absence of stipulations to the contrary in the instrument, the time, place, and manner of the sale should be that pointed out for public sales. Civil Code, § 4620. However, “that portion of the mortgage containing the power, like all other contracts, is to be construed so as to effectuate the intention of the parties, and the power must be exercised in accordance with the intention of the parties as indicated in the clause in the mortgage conferring the power.” Garrett v. Crawford, 128 Ga. 519-521 (57 S. E. 792, 119 Am. St. R. 398, 11 Ann. Cas. 167) ; Mathis v. Glawson, 149 Ga. 752 (3) (102 S. E. 351). Accordingly, where land located in Treutlen County is conveyed by deed as security for debt, and the deed contains a power of sale authorizing sale of the land in Candler County for collection of the debt, the sale in virtue of the contract should be held in Candler County.

2. Equity eases shall be tried in the county where a defendant resides against whom substantial relief is prayed. Civil Code, § 6540. A corporation of this State is not subject to a suit for equitable relief by injunction in a county other than that fixed by its charter as the county of its principal office. Etowah Milling Co. v. Crenshaw, 116 Ga. 406 (42 S. E. 709); Porter v. State Mutual Life Insurance Co., 145 Ga. 543 (89 S. E. 609); Georgia Land &c. Co. v. Savannah River Lumber Co., 150 Ga. 202 (103 S. E. 167). Accordingly, where a suit to enjoin exercise of a power of sale contained in a security deed is instituted in Treutlen County solely against a commercial corporation of this State, the principal office of which as fixed by its charter is in another county, the court is without jurisdiction.

3. Under the pleadings and the evidence, the action was improperly instituted in Treutlen County, and the judge did not err in refusing a temporary injunction. Judgment affirmed.

All the Justices concur.

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162 S.E. 814, 174 Ga. 313, 1932 Ga. LEXIS 43, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cadwell-v-swift-co-ga-1932.

Opinion

1. A power of sale in a deed of trust, mortgage, or other

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