McCurry v. Pitner

Atkinson, J.

1. In Brown v. Farmer, 94 Ga. 178 (21 S. E. 292), it was lield: “Several promissory notes maturing at different times having been given for the purchase-money of land, the vendor retaining title and giving a bond for titles to the vendee, after the maturity of some of the notes an equitable action in the superior court may be maintained upon all of them, irrespective of the question of solvency or insolvency of the maker, with a view to obtaining a decree for the sale of the land and for holding up the surplus proceeds, above the amount necessary to discharge the matured notes, to be applied to the others as they became due.” See also Civil Code (1910), §§ 3272, 3285, 3317; Hatcher v. Chancey, 71 Ga. 689; Littleton v. Spell, 77 Ga. 227 (2 S. E. 935).

(а) The decision quoted above does not conflict with Keen v. McAfee, 116 Ga. 728 (42 S. E. 1022). In the latter ease the notes that were not due were not declared upon in the petition, and it was on that ground that it was held the court was- without jurisdiction to render judgment upon them.

(б) The request to review and overrule the decision in Brown v. Farmer, supra, is denied.

(e)'The above-quoted decision in Brown v. Farmer is applicable to the facts of the present ease, notwithstanding there was no- contention that ’ the maker of the notes was insolvent.

2. In an equitable action of the character indicated in the first division, where the notes contain a conditional provision for the payment of attorney’s fees, and the allegations of the petition contain a claim for attorney’s fees as provided by statute, and the defendant does not by his plea deny or contest the facts upon which the claim for attorney’s fees is based, the judge can render a decree for such attorney’s fees without the intervention of a jury. Civil Code (1910), § 5420; Brown v. Farmer, supra.

(a) The cases of Merritt v. Bank of Cuthbert, 143 Ga. 394 (85 S. E. 104); Clark v. Lunsford, 143 Ga. 513 (2) (85 S. E. 708), and Glennville Bank v. Deal, 146 Ga. 127 (4) (90 S. E. 958), had reference to actions at law, in which the judge has not the same broad powers as are conferred upon him in an equity suit by the provisions of the Civil Code (1910), § 5420.

3. Applying the rulings announced in the preceding divisions, the judge did not err in overruling the demurrer to the petition and in rendering the decree. Judgment affirmed.

All the Justices concur. Stephen G. TJpson, for plaintiff in error. Shackelford & Shackelford, contra.