Dutton v. Faulk

Supreme Court of Georgia

Dutton v. Faulk

126 S.E. 718, 159 Ga. 736, 1925 Ga. LEXIS 45

CourtSupreme Court of Georgia

DecidedFebruary 18, 1925

DocketNo. 4199

StatusPublished

Cited by5 cases

This text of 126 S.E. 718 (Dutton v. Faulk) 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

Dutton v. Faulk, 126 S.E. 718, 159 Ga. 736, 1925 Ga. LEXIS 45 (Ga. 1925).

Pincite

Opinion

Atkinson, J.

1. Whore money is loaned and tlie borrower executes a deed conveying to the lender one tract of land containing a large number of acres as a security for the debt, the lender has an absolute legal right, as between the parties, to enforce the collection of any judgment which he might obtain upon the debt by a sale of the land as one entire tract, although if sold in separate parcels a portion of the land might pay the debt. Reeves v. Bolles, 95 Ga. 402-404 (22 S. E. 626); Howland v. Donehoo, 141 Ga. 687 (82 S. E. 32, L. R. A. 1917B, 513); Humphrey v. Smith, 142 Ga. 291 (2 a) (82 S. E. 885).

2. Where property, as indicated in the preceding note, has been levied upon and advertised to be sold at the December sales under a ii. fa. based on a judgment for the secured debt, an agreement by the plaintiffs to give the defendant until the first day of the following Jánuary to borrow money or sell a portion of the property to enable him to pay the secured debt, without further benefit to the plaintiffs, is without consideration and is unenforceable by the defendant. Bush v. Rawlins, 89 Ga. 117 (14 S. E. 886); Davis v. Morgan, 117 Ga. 504 (43 S. E. 732, 61 L. R. A. 148, 97 Am. St. R. 171); Willingham Sash &c. Co. v. Drew, 117 Ga. 850 (45 S. E. 237); Phinizy v. Bush, 129 Ga. 479 (6) (59 S. E. 259); 6 R. C. L. 664, § 73; 13 C. J. 351, §§ 207, 208. The contract alleged in this case for delay of sale of the property being nudum pactum, even if it was sufficient in other respects, affords no ground to the defendant in fi. fa. for injunction to prevent the sale of the property at the December sales.

3. The motion to award damages on the ground that the case was brought to this court for delay only must be denied; the judgment to which exception is taken being the refusal of an interlocutory injunction, and not a money judgment. Furr v. Bank of Fairmount, 139 Ga. 815 (5) (78 S. E. 181). Judgment affirmed.

All the Justices concur.

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Atkinson, J.

1. Whore money is loaned and tlie borrower executes a deed conveying to the lender one tract of land containing a large number of acres as a security for the debt, the lender has an absolute legal right, as between the parties, to enforce the collection of any judgment which he might obtain upon the debt by a sale of the land as one entire tract, although if sold in separate parcels a portion of the land might pay the debt. Reeves v. Bolles, 95 Ga. 402-404 (22 S. E. 626); Howland v. Donehoo, 141 Ga. 687 (82 S. E. 32, L. R. A. 1917B, 513); Humphrey v. Smith, 142 Ga. 291 (2 a) (82 S. E. 885).

2. Where property, as indicated in the preceding note, has been levied upon and advertised to be sold at the December sales under a ii. fa. based on a judgment for the secured debt, an agreement by the plaintiffs to give the defendant until the first day of the following Jánuary to borrow money or sell a portion of the property to enable him to pay the secured debt, without further benefit to the plaintiffs, is without consideration and is unenforceable by the defendant. Bush v. Rawlins, 89 Ga. 117 (14 S. E. 886); Davis v. Morgan, 117 Ga. 504 (43 S. E. 732, 61 L. R. A. 148, 97 Am. St. R. 171); Willingham Sash &c. Co. v. Drew, 117 Ga. 850 (45 S. E. 237); Phinizy v. Bush, 129 Ga. 479 (6) (59 S. E. 259); 6 R. C. L. 664, § 73; 13 C. J. 351, §§ 207, 208. The contract alleged in this case for delay of sale of the property being nudum pactum, even if it was sufficient in other respects, affords no ground to the defendant in fi. fa. for injunction to prevent the sale of the property at the December sales.

3. The motion to award damages on the ground that the case was brought to this court for delay only must be denied; the judgment to which exception is taken being the refusal of an interlocutory injunction, and not a money judgment. Furr v. Bank of Fairmount, 139 Ga. 815 (5) (78 S. E. 181). Judgment affirmed.

All the Justices concur.

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Bluebook (online)

126 S.E. 718, 159 Ga. 736, 1925 Ga. LEXIS 45, Counsel Stack Legal Research, https://law.counselstack.com/opinion/dutton-v-faulk-ga-1925.

Opinion

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