Glover v. Andros

Nichols, Justice. The plaintiffs filed a complaint against three defendants including the appellee here. As to the appellee it is alleged that he is the transferee of a deed to secure debt executed by the plaintiffs. The plaintiffs sought cancellation of the deed to secure debt, cancellation of an alleged sale under power contained in such deed to secure debt wherein the appellee purchased the property at the sale, a temporary restraining order, temporary and permanent injunction enjoining the appellee from evicting the plaintiffs as well as other relief against the appellee and the other defendants. The appellee filed a motion to dismiss as to him which was sustained and the temporary restraining order previously entered as to such defendant was dissolved. It is from this judgment that the plaintiffs appeal. Held: 1. It is nowhere alleged that the deed to secure debt executed by the plaintiffs was void for any reason as between the plaintiffs and the original grantee named in such deed, nor is it alleged that the transfer to the appellee was void, but the allegations tending to raise an issue of fraud or conspiracy between the appellee and the other defendants relate to matters occurring after the deed to secure debt was transferred to the appellee, and [184] there is no allegation that the plaintiffs at any time tendered the payments due on the loan secured by the deed to secure debt. Under the decision exemplified by Wood v. Piedmont Fed. S. & L. Assn. of DeKalb County, 224 Ga. 422 (162 SE2d 319), and the cases there cited the allegations seeking to set aside the deed to secure debt and sale thereunder were fatally defective and the trial court did not err in sustaining the motion to dismiss filed by the appellee and dismissing the complaint as to him. Submitted September 13, 1971 Decided October 8, 1971. Anderson, Walker & Reichert, Albert P. Reichert, Jr., for appellants. Melton, McKenna & House, Carl E. Lancaster, Jr., for appellees. Judgment affirmed. All the Justices concur.