Peoples Bank v. Fidelity Loan & Trust Co. , 155 Ga. 619 ( 1923 )

Gilbert, J.

1. On the hearing in this court the defendant in error moved to dismiss the bill of exceptions, on the ground that after the temporary injunction to restrain the sale of the land had been refused, and no exception taken to that judgment and no supersedeas granted, the defendant, the grantee in the first security deed, sold the land under the power of sale contained in its deed; and that the issues in the present ease are therefore moot. The motion to dismiss the writ of error is denied on the ground that the petition prayed for equitable relief which, if granted in the suit, would avoid the sale sought to be enjoined, and the defendant company proceeded to sell at its peril. Compare Porcher v. Pearsons-Taft Land Credit Co., 154 Ga. 483 (114 S. E. 634).

2. The Peoples Bank, under its security deed from Wright, became the assignee-of the latter, and was subrogated to all of his rights. Walker v. Maddox, 105 Ga. 253 (2) (31 S. E. 165); Beckom v. Small, 152 Ga. 149 (108 S. E. 542); Citizens Bank of Moultrie v. Taylor, 155 Ga. 416 (117 S. E. 247).

3. The Peoples Bank, by virtue of its security deed, which was subject to the security deed of the Fidelity Loan & Trust Company, became the assignee of Wright and a privy in interest. As such the Peoples Bank was entitled to raise the issue of usury in the transaction between the Fidelity Loan & Trust Company and Wright. Civil Code (1910), § 3428; Zellner v. Mobley, 84 Ga. 746 (11 S. E. 402, 20 Am. St. R. 390); Ryan v. American Freehold Land Mortgage Co., 96 Ga. 322 (23 S. E. 411); Scott v. Williams, 100 Ga. 540 (28 S. E. 243, 62 Am. St. R. 340).

4. The petition prayed, among other things, that “ petitioner have a special judgment against Wright and against the land, and that Wright’s equity of redemption therein be forever foreclosed and barred.” This was a prayer for substantial relief. This is true notwithstanding the allegation that Wright had been adjudicated a bankrupt. Harvard v. Davis, 145 Ga. 580 (89 S. E. 740).

5. The petitioner alleges that it tendered to the defendant, on or about the second day of January, 1922, the amount of principal and interest which had become due and payable, and that the defendant refused to accept said sums. The petition further alleges that its tender was a continuing one since that date, and that it is now able, willing, ana anxious to pay the same into court. If there was anything lacking to constitute a complete and formal tender, the same is waived by the refusal of the defendant to accept.

6. Since it has been held above that the petition prayed for substantial relief against Wright, who was a resident of the county of Gordon, the venue of the suit could properly be laid in that county.

No. 3529. May 18, 1923.

7. The act approved August 18, 1916 (Ga. Laws 1916, p. 48) is not in conflict with art. 3, sec. 7, par..8, of the constitution of Georgia (Civil Code, § 6437), which provides: “No law or ordinance shall pass which refers to more than one subject-matter or contains matter different, from what is expressed in the title.” The title of the act is “ An act to repeal sections 3438 and 3442 of the Code of 1910, regulating the forfeiture where usury is charged; and to provide forfeiture where any person, company, or corporation shall reserve, charge, or take for any loan or advance in money more than the legal rate, and for other purposes,” and there is nothing in the body of the act referring-to ,any subject other than regulating the forfeiture where usury is charged.

8. The act just referred to is not in conflict with art. 3, sec. 7, par. 17, of the constitution of Georgia (Civil Code, § 6445), which provides that “No law, or section of the Code, shall be amended or repealed by mere reference to its title, or to the number of the section of the Code, but the amending or repealing act shall distinctly describe the law to be amended or repealed, as well as the alteration to be made.” The act repeals sections 3438 and 3442 of the Code of 1910, and quotes each of these sections in full. It also complies with the constitution in stating fully and clearly the alteration to be made.

9. It follows from what has been said above that the petition set out a cause of action. It was not subject to dismissal on any of the grounds contained in the general demurrer; and therefore the court erred in sustaining the demurrer and in dismissing the petition.

■Judgment reversed.

All the Justices concur. M. B. Eubanks and A. L. Henson, for plaintiff. A. H. Wright and Maddox, Lipscomb & Matthews, for defendants.