Ray v. Home & Foreign Investment & Agency Co. , 98 Ga. 122 ( 1896 )

Atkinson, Justice.

The facts appear in the official report.

1. It was urged upon this court, as one of the reasons why injunction should have been granted by the circuit judge, that the power to sell, being conferred generally upon “the holder of the note” to secure which the deed was given, was too indefinite as to the personnel of the donee of the power to .admit of its exercise by any one. Whatever may have been the force of that proposition as applied to. one who became by assignment or indorsement the holder of the note, we encounter no difficulty in holding that the person sought to be enjoined was the very person upon whom the power was expressly conferred. The primary object sought to be accomplished by the execution of the deed was to secure to the payee of the note its payment, and by direct agreement with the payee, the power was conferred upon the holder. The word “holder” at the date of the execution of the deed meant the payee. The note has never been assigned, and its payment is sought to be enforced through the execution of the power by the particular person upon whom it was expressly conferred.

2. To the proposition that the actual personal presence of the donee of such a power is not essential to the validity of a sale thereunder, but that the sale itself may be conducted by him through an agent or auctioneer, we deem it only necessary to refer to the decision of this court in the case of Palmer v. Young, 96 Ga. 246.

3. The plaintiff in error borrowed the money of the defendant corporation, and to secure the payment of the sum loaned, executed the note and deed and. conferred the power now sought to be exercised in its collection. Upon the faith of the power as well as the deed the money was loaned, and upon the commonest principles of justice and equity, no great rule of public policy being involved or violated, the borrower should not, without restitution of the money, be permitted to repudiate the power, either by suggesting-the want of capacity upon the part of the corporation to receive, or its charter right to exercise such a power. It is also suggested that the power could not be delegated by the corporation to its attorney at law to manage the sale, but there are certain discretionary duties which devolve upon it, in connection with the election to exercise the power, which are incapable of delegation. "We do not think this fact presents an obstacle to the further progress of the sale; for, even if this contention were well founded (and that it is, is not admitted), it is a sufficient reply that the court will not in advance presume that the creditor will not be represented by a person clothed with ample authority to execute the power and to protect its interest.

Judgment affirmed.