BOWMAN, Administratrix, v. POOLE., 212 Ga. 261, 91 S.E.2.d 770 (1956)
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Summary
Judgment reversed. All the Justices concur.
Summary
Judgment reversed. All the Justices concur.
Text
Edwin Pearce, Poole, Pearce & Hall, Margaret Fairleigh, contra.Jas. L. Moore, for plaintiff in error.
1. The holder of a junior security deed is equitably entitled, when it is necessary for his protection, to pay the holder of a prior security deed who is proceeding to sell the pledged property under a power of sale contained in his security deed, the principal, interest and all costs due thereon, and demand a transfer thereof. In other words, the holder of a junior security deed, where the property is being sold under a power of sale contained in a senior security deed, has a right, in order to protect his interest, to redeem the property and be subrogated to all of the rights of the senior incumbrance. Tillman v. Stewart, 207 Ga. 576 (3) (63 S. E. 2d 386). The allegations of the petition are sufficient to show that the defendant Poole acted in bad faith when he refused to accept the amount due him on the secured debt and thereafter sold the pledged property under a power of sale contained in the security deed which had been transferred and assigned to him.
4. The amended petition stated a cause of action for the relief sought, and the trial judge erred in dismissing it on general demurrer.
They received the rents from it, but failed and refused to pay the instalments due on the Atlanta Federal Savings & Loan Association's loan for the months of January and February, 1955. On February 3, 1955, the defendant Poole paid Atlanta Federal Savings & Loan Association $3,378.80 as the balance due on the loan and took a transfer and assignment of its note and security deed from Fairview Terrace, Inc. Under an accelerating clause in the loan instruments, the defendant Poole declared the entire debt due, and pursuant to a power of sale contained in the assigned security deed, advertised the property for public sale on the first Tuesday in March, 1955. In order to protect the interest of her intestate, as the holder of a junior security deed, the plaintiff, on February 25, 1955, tendered the defendant Poole $3,771.68, the full amount then due him as transferee of the assigned loan, and demanded a transfer of it to her. The defendant Poole took the tendered money, counted it, handed it back to the plaintiff and refused to make a transfer and assignment of the loan instruments. On the first Tuesday in March, 1955, he exposed the property for public sale, bid it in for a consideration of $4,975, and as attorney in fact for Fairview Terrace, Inc., conveyed it to himself. By his refusal to accept the full amount due him on the assigned loan, and by his subsequent sale of the property at public auction, the defendant Poole acted in bad faith, and the plaintiff is entitled to recover from him the sum of $500 as attorney's fees. By her petition, the plaintiff made a continuing tender of the full amount due the defendant Poole.
There are prayers that the sale of the property be declared null and void; that the deed made pursuant thereto be canceled; that the defendant Poole be required to transfer the loan instruments to the plaintiff on payment of the full amount due him; that the plaintiff have a judgment for $500 against the defendant Poole for attorney's fees; and that she be granted such other and further relief as may be meet and proper.
1956
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