Porcher v. Pearsons-Taft Land Credit Co.

Gilbert, J. On the hearing of the case in this court the [485] defendants moved to dismiss tbe writ of error,' on the ground, that the issue therein was moot. The exception was to the refusal, of an interlocutory injunction sought by the plaintiff, to prevent a sale of land at public outcry under a power of. sale contained in a security deed. Movants exhibited a deed from the defendant, which held power of sale, to the purchasers at the auction sale of the land, together with proof that the purchase-price had. been fully paid. This deed recites that the sale was effected by virtue of the power of sale in the defendant’s security deed.. Based upon this proof movants insist that the sale sought to be enjoined has been completed. For reasons .which will appear in the discussion of the merits of the casé the service was legally sufficient. The restraining order was in effect, and the sale conducted at that time, notwithstanding the restraining order, was at the peril of the defendant. The fact that on the hearing some days thereafter the restraining order was dissolved without a supersedeas will not have the effect of legalizing a sale which was at the time illegal. The motion to dismiss the writ of .error is denied. ' > It appeared that a restraining order had been served on F. W. Dart, who conducted the sale, which had not been dissolved, and was therefore operative at the time, provided that, service on him constituted service on the company. The. defendant denied the sufficiency of the service, on the ground that F. W. Dart was served without any proof of agency, and that therefore the court-did not acquire jurisdiction of the defendant. On the interlocutory hearing there was oral evidence introduced by the plaintiff tending to show that F. W. Dart, who had negotiated the loan, acted for the defendant company throughout in preparing the papers, although the plaintiff, in one part of her testimony, said that F. W. Dart represented her in negotiating the loan. The defendant is a non-resident corporation. The sale of the land purported to be by authority of the power of sale contained in the security deed. The sale had no other validity except under that power. F. W. Dart was the only person, under the evidence, assuming and exercising any authority to make the salé. He could have derived that authority only from the -defendant. If he was a mere volunteer and without that authority, the sale would be without any binding effect. The power of-sale was lodged in the defend [486] aut with authority to appoint an,agent to make the sale by duly executed and recorded' instrument. No writing was shown. It would be unthinkable to hold that under the laws of Georgia a foreign corporation could acquire a security deed containing, a power of sale and could exercise that power without any authorized agent in this State, so as to prevent service of suit, and thereby deprive the holder of the equity of any opportunity to adjudicate disputed issues as to his rights. There was evidence for the defendant, denying that F. W. Dart was in any sense the agent or representative of the defendant, and' also denying that defendant had any agent in the county of Coffee of such character as would authorize the service of suit upon him. There was evidence to the effect that F. W. Dart was requested by a' named person in another county in Georgia to conduct the sale; but no .authority was shown in that person, either oral or documentary, to empower the sale. As stated above, that power was vested in the defendant company, and it is nowhere shown that they had assigned the same to any person, unless it was in F. W. Dart, who actually exercised the power. Moreover, it should be remembered, in considering whether F. W. Dart was the agent of the defendant company,, that the former was in fact exercising the very acts of the company sought to be enjoined. For these reasons we hold that under the evidence a finding was demanded that service on F. W. Dart was service on the company; that the restraining order was operative at the time of-the sale; that the sale, which was made at the peril of the defendant, was illegal; and'therefore that the court erred in refusing an interlocutory injunction. Judgment reversed. All the Justices concur.