SEYMOUR v. NATIONAL BUILDING AND LOAN ASSOCIATION.

[116 Ga. 285, 42 S. E. 518.]

MORTGAGE Sale Under Power-Statute of Frauds.-A sale of land at auction by a mortgagee under a power contained in the mortgage authorizing him to sell such land, at public or private sale, is not binding unless a memorandum is made as prescribed by the statute of frauds. Such sale is not a judicial sale so as to dispense with such memorandum. (p. 132.)

J. T. Hill, for the plaintiffs in error.

Thompson & Whipple, for the defendant in error.

case.

285 SIMMONS, C. J. An equitable petition for specific performance was filed by Seymour against the National Building and Loan Association of Montgomery, Alabama. The defendant filed an answer in the nature of a cross-bill, to which Varnedoe was made a party. It was admitted that the case inade by this answer was controlled by the result of the main From the evidence it appeared that the defendant, acting under a power of sale contained in a security deed to it from Varnedoe, had advertised certain property of Varnedoe's for sale. At the appointed time and place an agent of the defendant appeared and sold the property at public 286 outcry, the plaintiff being the highest bidder. The property was knocked off to plaintiff, but no deed or written memorandum was made. Subseqently the defendant refused to consummate the sale by making deeds, and the plaintiff filed his equitable petition to enforce the sale. The defendant filed several pleas, one of which was that the sale could not be enforced, because no memorandum had been given as required by the statute of frauds. On the trial the court, on motion of the defendant, granted a nonsuit. The defendant was then permitted to withdraw its motion for a nonsuit and ask the direction of a verdict. The court then directed a verdict in favor of the defendant. Exception is taken to the direction of the verdict, and to the judge's allowing the motion for a nonsuit to be withdrawn.

The question is made, therefore, whether this sale was within the statute of frauds. The plaintiffs in error contended that it was not, for the reason that this sale was equivalent to a strictly judicial sale, and that such a sale was effectual and enforceable without a written memorandum. After a careful consideration

of the case we have come to a contrary conclusion. That sales by auction are within the statute of frauds is settled in this state: White v. Crew, 16 Ga. 416; Civ. Code, sec. 3527. It has, however, been expressly provided that "no note or memorandum in writing shall be necessary to charge any person at a judicial sale" Civ. Code, sec. 5448. The present case does not come within this provision; for the sale was not a judicial sale within the meaning of the statute. In this state the term "judicial sale" is used to denote more than what is known in the textbooks as such, and includes execution sales. It does not, howcver, include a sale of the character now in question. In Mutual Loan etc. Co. v. Haas, 100 Ga. 111, 62 Am. St. Rep. 317, 27 S. E. 980, it was held that a sale under a power given in a mortgage was equivalent to a sale under a foreclosure of the mortgage by a court of competent jurisdiction, and had the same effect as to cutting off liens junior to the mortgage. It would be an extension of this decision to hold that this was a judicial sale within the meaning of the code section cited above. A sale under the power or a sale under a proper foreclosure would, either of them, have the effect of cutting off junior liens. Either method, so pursued as to result in a valid and binding sale, would have this result. But this is no reason for omitting an essential part of the method pursued, merely because such part would 287 not have been essential had the mortgagee elected to pursue the other method. Where a power of sale in a mortgage is coupled with an interest, it is irrevocable, and junior liens are taken subject to the lien of mortgage. A purchaser under a sale by virtue of the power is as much protected from junior liens as though the sale had been under a foreclosure proceeding in a proper court. Such purchaser must, however, see to it that the sale is so conducted as to be valid and binding. There must be a valid and binding sale before it can have the effect of a foreclosure sale, or, indeed, any effect at all. Had a proper memorandum been made and this sale been binding, it would have had the force and effect of a foreclosure sale. As the memorandum required by the statute of frauds was not made, the sale was not enforceable at all. It was also contended that the contract had been executed. This contention was based on the fact that Seymour, by an arrangement with Varnedoe, had gone into possession of the land and had tendered the purchase price to the defendant. There is nothing in these facts to constitute the sale an executed one, so as to take it out of the statute. The power of

sale had been given to the defendant, and Varnedoe had no authority by any act of his to execute an unenforceable sale made by the defendant under the power. Nor does the tender of the money avail, for it appears that the tender was refused by the defendant on the ground that the sale was not valid or binding. For these reasons the court properly held that the sale was not enforceable.

There was no error in allowing the defendant to withdraw its motion for a nonsuit. It appears that the court had orally announced that it would sustain the motion, but no order had been taken. It was accordingly within the discretion of the court to allow the motion to be withdrawn. Then, as the evi dence was such as to demand a finding for the defendant, there was no error in directing a verdict accordingly. Judgment affirmed.

All the justices concurring, except Lewis, J., absent.

Sales Under Powers in Mortgages and trust deeds are considered in the monographic notes to Houston v. National etc. Loan Assn., 92 Am. St. Rep. 573-598; Tyler v. Herring, 19 Am. St. Rep. 266-297. As to the application of the statute of frauds to such sales, see Dunham v. Hartman, 153 Mo. 625, 77 Am. St. Rep. 741, 55 S. W. 233. Judicial sales are not within the statute: Robertson v. Smith, 94 Va. 250, 64 Am. St. Rep. 723, 26 S. E. 579.

BRAND v. CLEMENTS.

[116 Ga. 392, 42 S. E. 711.]

EXEMPTIONS.-If a Crop is produced by the conjoint use of property which is exempt and that which belongs to the debtor individually, the whole crop cannot be made subject to the claim of the creditor of the head of the family individually. In such case only an aliquot part of the crop representing equitably the interest of the debtor, unaffected by the exemption can be legally subjected to his debt. (p. 135.)

EXEMPTIONS.-A Crop Partially Raised by the use of exempted personalty is exempt as a whole, in the absence of a showing of the aliquot part of the debtors' equitable interest therein un affected by the exemption. (p. 136.)

O. A. Nix, for the plaintiff.

Juhan & McDonald, for the defendant.

392 LITTLE, J. An execution in favor of Brand was levied on certain property of Clements, the defendant in fieri facias, the property being described in the levy as "eight or ten acres of cotton now in the field and unpicked." The defendant filed an affidavit of illegality, alleging that the property levied on was exempt from levy and sale, as being the proceeds of certain personal property set apart as an exemption to him as the head of a family. After a trial of the issues so raised, an appeal was taken to a jury in the justice's court, and on the trial of the appeal the jury rendered a verdict finding the property not subject. The plaintiff in execution subsequently sued out a writ of certiorari, and on the hearing in the superior court the judge overruled and dismissed the same. The plaintiff excepted to this ruling. The errors alleged in the petition for certiorari were that the verdict was contrary to law and evidence. It appears from such evidence that theretofore there had been set apart, as an exemption to Clements, thirty bushels of corn, a wagon, some shucks, four hogs, and a small amount of household and kitchen furniture. The wife of Clements testified that she and her children made the cotton levied on, and that the exempted property was used in making the crop; that Clements himself worked in the crop while he and his family consumed the provisions which had been set apart; that in so doing two of the hogs mentioned in the schedule were killed, two were sold, and the proceeds of the sale were used to purchase corn which was used on the 393 farm; that the corn exempted lasted only until March; that during the planting season Clements, by outside labor procured the cottonseed which was planted; that while he worked some in the cultivation of the crop he did outside work to some extent, using the proceeds of this labor for his family; that, in addition to this, he procured additional supplies from a merchant, the purchase price of which was secured by mortgage on the crop, and had been paid. The sum of the evidence for the plaintiff in execution was that Clements had done good deal of outside work, for which he received money with which he purchased supplies for his family, and that he had also been furnished with supplies for his family on credit from outside sources.

Under the contentions of the parties, the legal question arises, whether a crop of cotton partially raised by the use of exempted personalty is, because of such use, itself exempt. Our Civil Code, section 2848, declares that all produce, rents, or profits arising from homesteads in this state are likewise

exempt; and inasmuch as exempted personalty stands in all respects on the same footing, under our law, as a homestead, and by the statute seems to be included in the latter term, the declaration of the code applies directly to property which has been set aside as exempt. But it is apparent, under the evidence in this case, that the cotton levied on and claimed to be exempt was not entirely the product or profits of the exempted personalty. The evidence clearly establishes that it was only partially the product arising from such use. While it is very clear that if, in the production of the cotton, only exempted personalty or its proceeds was used, it would not be subject, the conclusion is not the same when the proceeds of property exempt and property not exempt were jointly used in its production. In the case of Kupferman v. Buckholts, 73 Ga. 778, it was distinctly ruled that where personalty was set apart as exempt, and it was subsequently used on rented land in making a crop, such crop, after payment of the rent, would not be subject to the prior debts of the head of the family, although there was an increase in the amount of the crop over the amount of the exemption used in making it. In laying down this legal proposition, however, Chief Justice Jackson confined its application to cases only where the product of the land arose strictly from the use of exempted personalty; for he says, in the opinion by which he supports the proposition: "We 394 do not say that if the head of a family has property of his own individual right—either land or personalty-wherewith, in conjunction with that exempted, he makes increase in the shape of other property, justice and equity would not require that a portion thereof should go to his creditors." The reported facts in the case of King v. Skellie, 79 Ga. 147, 3 S. E. 614, show that personal property which had been set apart as exempt for the family of King, who was a debtor of Skellie, was used in producing a crop on land which King had acquired subse quently to the setting apart of his exemption. When the crop so raised was levied on to force the execution of Skellie, King claimed it as the proceeds of exempt property. Skellie tendered an equitable issue seeking to subject a portion of it, which he alleged equitably belonged to King as an individual. This court recognized that this right existed, but ruled that Skellie could not subject to his execution any portion of the crop greater than the value of the rent of the land on which it was made. Again, in Vining v. Officers of Court, 82 Ga. 222, 8