Guardian Life Insurance v. Collins

176 S.E. 39, 179 Ga. 444, 1934 Ga. LEXIS 302

• Court: Supreme Court of Georgia
• Decided: September 15, 1934
• Docket: No. 10073
• Status: Published

Opinion

Atkinson, J.

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. Under application of this maxim, before a borrower who has executed a deed to secure debt can have affirmative equitable relief ' such as the setting aside of a sale by the creditor under the exercise of ■ a power contained in a security deed, such debtor must pay or tender the creditor the principal and interest due to him. Biggers v. Home Building & Loan Asso., ante, 429, and cit. Applying to the pleadings the principles stated above, whether or not the sale was unlawful because conducted as a private sale, the petition was subject to demurrer on the ground that no tender of the amount had been made by the plaintiffs. Consequently the petition failed to allege a cause of action, and the judge erred in overruling the demurrer.

Judgment reversed.

All the Justices concur. Haas, Gambrell & Gardner and Charles D. Hurt, for plaintiff in error. Pearce Matthews, contra.