Stephens v. National Life Insurance

176 S.E. 772, 179 Ga. 619, 1934 Ga. LEXIS 348

Opinion

Bell, J.

The grantor in a security deed with power of sale sought injunction to prevent a sale under such power, on the ground that the notes secured by the deed obligated the plaintiff to pay a specified number of dollars “in gold coin of the United States of the [then] present standard of weight and fineness,” and that, because of subsequent Federal legislation and an order of the President, it has become legally impossible for the plaintiff to pay the debt in the medium specified. The court sustained a general demurrer and dismissed the petition, and the plaintiff excepted. Held:

1. “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.” Civil Code (1910), § 4521.

2. Regardless of other questions, the petition failed to state a cause of action, in the absence of an offer to pay in any medium whatever, or to do equity in the premises. The court did not err in sustaining the general demurrer and in dismissing the petition. See Michie’s Code, § 4294 (184); U. S. C. A. Sup. 1933, title 31, §§.462, 463; 6 R. C. L. 1000, § 366. Judgment affirmed.

All the Justices concur.