Giordano v. Stubbs

184 S.E.2d 165, 228 Ga. 75

Opinions

Hawes, Justice.

The appeal in this case is from the judgment of the Superior Court of DeKalb County denying the motion of the plaintiffs for a summary judgment against the defendant Stubbs for damages in the amount of $145,000, plus interest, and the cross appeal is from the denial of the defendant Stubbs’ motion for a summary judgment in his favor as to all issues in the case. At issue is the validity of a sale by Stubbs, under power granted him in a deed to secure debt, of 35.52 acres of land located in Gwinnett County, Georgia. The undisputed facts show that Stubbs sold the land in question to one Donald E. Gaston on the 15th day of November, 1963, giving to Gaston a warranty deed therefor and receiving from Gaston a note and deed to secure debt in the amount of $30,000, payable interest only in semiannual instalments of $900 each until November 14, 1969, at which time the principal balance with accrued interest thereon was due and payable. Gaston sold the property to a third party who, in turn, sold it to the plaintiffs, and the plaintiffs thereafter sold it to Bob E. L. Pope on the 31st day of July, 1969, for a recited consideration of ten dollars and other valuable consideration. As a part of the sale price from the plaintiffs to Pope, the latter gave to the plaintiffs a note and deed to secure debt in the amount of $163,500, and assumed the note and deed from Gaston to Stubbs in the amount of $30,000, as had each successive grantee prior to him. On November 1, 1969, Stubbs wrote to Joseph P. Giordano a letter advising him that, "Your note in the amount of $30,000.00, plus interest of $900.00 is due and payable Nov. 14, 1969. I have assigned this note to the Trust Co. of Ga. Please mail check in the amount of $30,900.00 to Trust Co. of Ga., East Atlanta Branch, 514 Flat Shoals Ave., S. E., Att: Mr. Harold Williams.” On December 11, 1969, the indebtedness not having been paid, the attor ney for Stubbs wrote a letter to Gaston advising him of the non-payment of the note and notifying him of Stubbs’ intention to institute legal proceedings to recover the same and to claim attorney’s fees if the note should not be paid within ten days thereof. A copy of this letter was sent to Pope. On December 11, 1969, Stubbs secured the re-assignment of the note and deed to secure debt of Gaston to him from the Trust Company of Georgia. This re-assignment was filed for record on January 9, 1970, and recorded on January 13, 1970. Notice was published in the January 9, 16, 23 and 30th, 1970, issues of the Gwinnett Daily News that Stubbs, as attorney in fact for Donald E. Gaston under the deed to secure debt, would sell the property "by public outcry to the highest bidder for cash before the courthouse door in Gwinnett County, Georgia, within the legal hours of sale on the first Tuesday in February, 1970.” On February 5, 1970, Joseph P. Giordano and Sam Giordano instituted their suit against Stubbs to enjoin the sale, to enjoin any proceeding to confirm the sale and to have the sale annulled, and for such other and further relief as might be deemed proper, lawful, equitable and just. Subsequently, the plaintiffs amended their complaint by adding Josephine Giordano as a party plaintiff, by adding the real estate firm of Summer-Minter & Associates, Inc., and Hugh Summer, one of the partners therein, as parties defendant and by adding demands for alternative relief in the form of a monetary judgment against Stubbs and against all the parties defendant on the basis of a claimed conspiracy to defraud. After receipt of interrogatories and answers thereto and after the filing of the depositions of the various parties and of witnesses, the judge of the superior court passed an order denying all motions for summary judgment filed by the plaintiffs and by the defendant Stubbs and by the defendants Summer-Minter & Associates, Inc., and Hugh Summer. That judgment was certified for immediate review.

1. Applying the laws of this State to the above facts, the trial judge erred in not granting the motion for a summary judgment of the defendant Stubbs. The security deed from Gaston to Stubbs which contains the power of sale under which Stubbs proceeded, provides: "In case the debt hereby secured shall not be paid when it becomes due by maturity in due course or by reason of a default as herein provided, grantor hereby grants to grantee the following irrevocable power of attorney: To sell the said property at auction, at the usual place for conducting sales at the court house in the county where the land or any part thereof lies, in said State, to the highest bidder for cash, after advertising the time, terms and place of such sale once a week for four weeks immediately preceding such sale (but without regard to the number of days) in a newspaper published in the county where the land lies, or in the paper in which the sheriff’s advertisements for such county are published, all other notice being hereby waived by grantor, and grantee (or any person on behalf of the grantee) may bid and purchase at such sale . . .” This deed constituted a contract between Gaston as grantor and Stubbs as grantee, and its provisions are controlling as to the rights of the parties and their privies. Stubbs complied with its terms. He advertised the sale in the Gwinnett Daily News for four weeks immediately preceding holding it. On the sale day the property was auctioned off from the steps of the Gwinnett County Courthouse as required by the deed. It was bid in by Stubbs, as he was specifically authorized to do by its terms. Giordano complains that he was not notified; however, the record shows otherwise. There is nothing in the security deed, nor in the laws of Georgia, which would require Stubbs to give actual notice that he was exercising the power of sale. Giordano, being in privity with the grantor in the deed to secure debt, was entitled to no other notice than the advertisement in accordance with the provisions of the security deed. The facts in the record disclose that Stubbs did actually notify his grantor, Gaston, and the record owner of the property, Pope, prior to the time of the sale, that the debt was in default. Giordano’s claim that he was entitled to notice from Stubbs before he exercised the power of sale to foreclose the deed is totally without legal merit. The U. S. Supreme Court, in upholding a Georgia case, Scott v. Paisley, 158 Ga. 876 (124 SE 726), observed: "In the absence of a specific provision to that effect, the holder of a mortgage or trust deed with power of sale, is not required to give notice of the exercise of the power to a subsequent purchaser or incumbrancer; and the validity of the sale is not affected by the fact that such notice is not given. . . 'The law imposes no duty upon a person holding a prior mortgage or deéd of trust to notify one holding a similar subsequent or junior lien or incumbrance upon the same property of his intention to sell the property under his mortgage or deed of trust. All that is required of him is to advertise and sell the property according to the terms of the instrument, and that the sale be conducted in good faith.’” Scott v. Paisley, 271 U. S. 632, 635 (46 SC 591, 70 LE2d 1123). See, to the same effect: Garrett v. Crawford, 128 Ga. 519, 523 (57 SE 792, 119 ASR 398, 11 AC 167); King v. Walker, 141 Ga. 63, 64 (80 SE 312); Ellis v. Ellis, 161 Ga. 360, 362 (130 SE 681); Kent v. Hibernia Savings &c. Assn., 190 Ga. 764, 765 (10 SE2d 759); West Lumber Co. v. Schnuck, 204 Ga. 827, 834 (51 SE2d 644); Massey v. National Homeowners Sales Service.Corp., 225 Ga. 93, 98 (165 SE2d 854); Turpin v. North American Acceptance Corp., 119 Ga. App. 212, 216 (166 SE2d 588). The sale in this case was advertised as provided in the security deed, and, also, as provided in Code Ann. § 67-1506. This was sufficient.

2. The Giordanos, appellants, and cross appellees, contend that the sale of the property by Stubbs was infected by several irregularities which would authorize a court of equity to set the same aside. None of these contentions is meritorious. In view of the ruling made in the preceding headnote, it was clearly immaterial that Stubbs had written Joseph Giordano that payment of the last instalment on the note, together with the interest, should be made to the Trust Company of Georgia. Giordano did nothing about making payment and he was not entitled to rely on that informal notice when the property was foreclosed upon strictly in accordance with the terms of the deed to secure debt. He also contends that the record ownership of the instrument foreclosed was in the Trust Company of Georgia on the date the first of the four weekly advertisements was run, and that the transfer of the instrument from the Trust Company to Stubbs was not recorded until some four or five days after the date of the first advertisement. Assuming, but not deciding, that the failure of Stubbs to record the re-conveyance of the instrument to him prior to the sale, or prior to its advertisement, would have constituted such an irregularity as, when accompanied by "gross inadequacy of price,” would have authorized a court of equity to set the sale aside, there was no such irregularity in this case. The record shows that Stubbs filed for record the reassignment of the instrument to him on the day the first advertisement ran in the newspaper. This clearly met the requirements of the law, for it is the date of filing, and not the date of recording, that fixes rights under the law with respect to instruments required to be recorded. Code § 67-2501. Durrence v. Northern Nat. Bank, 117 Ga. 385 (43 SE 726); Merchants’ & Mechanics’ Bank v. Beard, 162 Ga. 446, 455 (134 SE 107).

3. Inadequacy of price paid upon the sale of property under power will not of itself and standing alone be sufficient reason for setting aside the sale. It is only when the price realized is grossly inadequate and the sale is accompanied by either fraud, mistake, misapprehension, surprise or other circumstances which might authorize a finding that such circumstances contributed to bringing about the inadequacy of price that such a sale may be set aside by a court of equity. Smith v. Ga. Loan &c. Co., 114 Ga. 189 (39 SE 846); Croft v. Sorrell, 151 Ga. 92 (106 SE 108); Massey v. National Homeowners Sales Service Corp., 225 Ga. 93, 99, supra. There being no such circumstances accompanying the sale, as we have held in the preceding headnotes, the gross inadequacy, if such there was, in the sale price would not, standing alone, authorize a court of equity to set the sale aside. Under all the circumstances in this case, the defendant Stubbs was entitled to a summary judgment and the court erred in refusing to grant his motion therefor.

Argued May 11, 1971 Decided September 27, 1971. Haas, Holland, Freeman, Levison & Gibert, Hugh W. Gibert, for appellants. Huie & Harland, Harry L. Cashin, Jr., Peek, Whaley, & Haldi, Glenville Haldi, Curtis R. Richardson, for appellees.

4. The foregoing disposes of the entire case and renders moot the questions raised on the main appeal.

Judgment reversed on the cross appeal; main appeal dismissed.

All the Justices concur, except Felton, J., who dissents.