Craft v. Link

Atkinson, J.

1. This was a suit to enjoin the defendant from exercising a power of sale contained Jn a deed to secure debt, executed by the plaintiffs. The ground relied upon to enjoin the sale was that the contract was usurious and fraudulent. Upon these questions the pleadings made issues, and the evidence upon them was conflicting. At the interlocutory hearing the judge declined to grant an ad interim injunction against the defendant, but ordered that if he elected to proceed with the sale the proceeds should be held subject to the further order of the court. In accordance with the prayers of the cross-petition the order further provided that the plaintiff's be restrained and enjoined from interfering, directly or indirectly, with the defendant in the exercise by him of the power of sale contained in the deed. The plaintiffs excepted. Held:

(a) The plaintiffs did not offer to do equity by paying the money admitted to be due under the deed to secure debt, the evidence was conflicting as to the existence of usury, and there was no abuse of discretion'in refus- • ing to-enjoin the defendant.

(Z>) In such a case the presiding judge erred in granting an injunction against the plaintiffs merely on application in the answer of the defendant, with no showing of any impending restrainable act by plaintiffs, the result of which order was to restrain the plaintiffs from tendering • the amount admitted by them to be due and resisting payment of the balance, or exercising any legal mode of asserting the rights claimed by them. Ray v. Anderson, 125 Ga. 502-509 (54 S. E. 356).

(c) It was not sufficient to merely order that the proceeds of sale be held subject to the further order of court.

Judgment affirmed, in so far as it denied the injunction sought by the plaintiffs, but reversed in so far as it enjoined the plaintiffs.

All the Justices concur.