Blakely Mule Co. v. Lewis , 27 Ga. App. 400 ( 1921 )

Bloodworth, J.

(After stating the foregoing facts.)

Only the ruling stated in the 2d headnote will be' discussed. The charge there referred to was as follows: “ On the other hand, I charge you this: If you believe from the testimony in the case that Lewis and McMullen and the Blakely Mule Company, who are the plaintiffs in this case, executed this paper, and that there was a sale made under it, and that the Blakely Mule Company purchased at that sale the property referred to in that paper, that that sale would be void. I charge you further, that even though you believe that Lewis and McMullen signed that paper, and it should develop on the trial of this case, from the .testimony, that under that paper the mules were sold that are referred to therein, and that the Blakely Mule Company purchased these mules, that the sale would .be void.” This charge was error and requires the grant of a new trial. Such a sale would not be void, but voidable only. In Payton v. McPhaul, 128 Ga. 511 (4) (58 S. E. 50, 11 Ann. Cas. 163), it was held that “ The general rule is that the mortgagee can not be a purchaser at his own sale under the power in the mortgage, but a purchase by him is not absolutely void, but voidable only, at the instance of the mortgagor or the owner of the equity of redemption.” In Standbackl v. Thornton, 106 Ga. 81 (31 S. E. 805), Justice Cobb said (p. 82): “While the general rule is that no' trustee can purchase trust property at his own sale, and therefore a mortgagee can not purchase property at a sale which is held under an execution of the power authorizing such sale, unless the mortgage expressly authorizes him to become a bidder and purchaser at the sale, still an unauthorized purchase by the mortgagee will not render the sale void, but only voidable at the instance of .the mortgagor, who has a right to elect to set aside the sale, provided he offer to redeem at the time that he so elect.” See also Palmer v. Young, 96 Ga. 246 (2) (22 S. E. 928, 51 Am. St. R. 136). It does not appear that prior to the filing of the suit in this case, or in their pleadings, the defendants offered to redeem the property.

Under the facts and the pleadings in this case the general rule above referred to is applicable. The court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, C. J., and Luke, J., concur.