Bracewell v. Coleman , 191 Ga. 35 ( 1940 )

1. "An owner of land sold at public auction under a power of sale in a security deed has a right to come into equity whenever it appears that the purchaser made untrue representations whereby other persons were prevented from bidding, and by which the land was obtained at an undervalue." Carr v. Graham, 128 Ga. 622 (57 S.E. 875). See Rives v. Lawrence, 41 Ga. 283; Dowling v. Doyle, 149 Ga. 727 (2) (102 S.E. 27); Bailey v. Turner, 150 Ga. 823 (105 S.E. 471); Broadwell v. Smith, 152 Ga. 161 (108 S.E. 609).

2. The allegations of the petition in the instant case, to the effect that the defendant advised against selling the property for $500 at private sale in order to pay the debt of $149, and, having agreed to sell for the benefit of petitioner and himself, told a named prospective purchaser of such agreement and that it would be best for such purchaser and petitioner not to attend the sale, that defendant bid in for $300 the property which was immediately sold for $500, and refused to carry out his agreement, are sufficient as against a general demurrer, to show a cause of action for equitable relief. The judge erred in sustaining the general demurrer to the petition and in dismissing the action.

Judgment reversed. All the Justicesconcur.

No. 13396. OCTOBER 16, 1940. S. A. Bracewell Sr. executed a security deed to A. T. Coleman on May 16, 1928, and died shortly thereafter. The amount of the debt was $149, and the property given as security was a described tract of land. Except for this debt and the funeral expenses, the deceased left no debt. His only heirs were his son E. A. Bracewell and one other. On May 4, 1939, the son brought suit against Coleman and others, alleging substantially as follows: Petitioner, as the owner of a half undivided interest in the equity, lives on the land, and has been in possession since his father's death. There is no permanent administration. Shortly after the grantor's death petitioner was offered $500 cash for the land. Defendant advised against making the sale, on the ground the property was worth more, and stated that it would be best for him to foreclose to perfect title and then sell at private sale, which he would do for the benefit of petitioner and himself, and after taking out what was due him he would turn over the remainder to petitioner. Petitioner agreed to this, and refused to sell. Defendant sold the land at public sale under the power contained in the security deed, and bid it in for $300. During the period of foreclosure a person interested in buying the property for $500 cash saw defendant, and was told that defendant was going to buy as stated above, and to stay away from the sale. Such person was able to buy for $500 and would have given that much, and refrained from attending the sale on account of the statement by defendant. Defendant stated to petitioner that he also should stay away from the sale. Defendant now refuses to recognize any interest of petitioner in the property or proceeds. Immediately after the sale defendant sold the property for $500, and made a deed, but petitioner is still in possession, and the grantees are not innocent purchasers, but bought with full knowledge of all the things herein set forth. For the reasons shown the sale is void, and in particular because defendant kept purchasers from attending. The prayers were that the sale be declared void, and any deed, if one was made, be surrendered and canceled, and that the property be resold in such manner as the court may direct to pay the secured debt, and the remainder be administered according to law, and after paying the debts that the portion coming to petitioner as an heir be decreed him; that in case the court can not grant this relief, petitioner recover for the benefit of the estate the difference between the secured debt and the $500 for which defendant sold the property immediately after the sale; and for general relief. The exception is to an order sustaining a general demurrer and dismissing the action.