Ruff v. Lee

197 S.E.2d 376, 230 Ga. 426, 1973 Ga. LEXIS 936

• Court: Supreme Court of Georgia
• Decided: April 13, 1973
• Docket: 27758
• Status: Published

Opinions

Nichols, Justice.

The appellant contends that under the rationale of the decisions in Blocker v. Blackburn, 228 Ga. 285 (185 SE2d 56); Hall v. Stone, 229 Ga. 96 (189 SE2d 403), following Fuentes v. Shevin, 407 U. S. 67 (92 SC 1983, 32 LE2d 556), a finding that Code Ann. § 67-1506, supra, is unconstitutional is demanded and that it was error for the trial court to deny her motion for summary judgment.

The basic question presented by this appeal is whether the trial court erred in denying the appellant’s motion for summary judgment. If the statute attacked were to be declared unconstitutional, it would not aid the appellant inasmuch as the deed to secure debt expressly set forth the rights and duties of the holder thereof as to any exercise of the power of sale, and no contention is made that the grantee in such deed did not follow explicitly the terms of the contractual agreement. In order for the appellant to be entitled to the summary judgment not only would the statute have to be unconstitutional, but the terms of the contract would have to be against public policy, and it cannot be said that the contract would fall into such category.

Unlike the contracts dealt with in Fuentes v. Shevin, supra, the contract did not authorize the grantee "to take back,” "to retake” or "may repossess,” nor did it merely authorize the grantee "to sell” such realty under the provisions of any statute without setting forth what should be done. To the contrary, the deed expressly set forth that upon default: "the grantor . . . hereby agrees that if there be a default in the payment of principal or interest, taxes and/or insurance when due then said grantee . . . may, and by these presents, is authorized to sell at public outcry before the Court House door in the County of Fulton, to the highest bidder for cash, all of said property to pay the said principal with interest thereon to the date of sale, and expenses of the proceedings, including fees of attorneys, together with all advances made for insurances or taxes, after advertising the time, place, and terms of sale in any newspaper published in said County of Fulton once a week for four weeks prior to said day of sale, and it is hereby stipulated that the foregoing power of sale being coupled with an interest shall be irrevocable by the death of either party hereto and the said grantee ... may bid at said sale and the said grantee . . . may make to the purchaser or purchasers of the said property good and sufficient title in Fee Simple to the same thereby divesting out of said grantor ... all the right and equity ... may have in and to said property, and vesting the same in the purchaser or purchasers aforesaid.”

In Giordano v. Stubbs, 228 Ga. 75 (184 SE2d 165) it was held, following Scott v. Paisley, 158 Ga. 876 (124 SE 726) affirmed, 271 U. S. 632 (46 SC 591, 70 LE2d 1123), that the holder of a secondary deed to secure debt is not entitled to any notice beyond that called for by the contract. In Scott v. Paisley, supra the court held that a subsequent purchaser was not denied due process of law where the notice required by the contract was given. Other cases upholding sales made under contracts similar to the one here under consideration are exemplified by Ellis v. Ellis, 161 Ga. 360 (130 SE 681); Oliver v. Slack, 192 Ga. 7 (14 SE2d 593), and similar cases.

The trial court did not err in denying the appellant’s motion for summary judgment.

Judgment affirmed.

All the Justices concur, except Gunter, J, who concurs specially.