He who would have equity must do equity and must give effect to all equitable rights of the other party respecting the subject matter of the action.
(Orig. Code 1863, § 3017; Code 1868, § 3029; Code 1873, § 3084; Code 1882, § 3084; Civil Code 1895, § 3924; Civil Code 1910, § 4521; Code 1933, § 37-104.)
Law reviews.- For article discussing the historical background of the doctrine of tender and the application in Georgia of tender requirements, and proposing reforms, see 21 Mercer L. Rev. 413 (1969). For article discussing application of the principle that he who would have equity must do equity to taxpayer's suits, see 7 Ga. St. B.J. 305 (1971).
JUDICIAL DECISIONSANALYSIS
The equitable maxim which is embodied in this section is a favorite maxim in equity. Duke v. Ayers, 163 Ga. 444, 136 S.E. 410 (1927); Autry v. Southern Ry., 167 Ga. 136, 144 S.E. 741 (1928).
This section contains one of the oldest and best settled and most familiar maxims in equity. It is applicable in every type of case, including unfair competition. Eastman Kodak Co. v. Fotomat Corp., 317 F. Supp. 304 (N.D. Ga. 1969), appeal dismissed, 441 F.2d 1079 (5th Cir. 1971).
This section is the basis for the "clean hands" doctrine. Partain v. Maddox, 227 Ga. 623, 182 S.E.2d 450 (1971).
One who comes into a court of equity with unclean hands must be denied relief. Musgrove v. Musgrove, 213 Ga. 610, 100 S.E.2d 577 (1957).
One will not be permitted to take advantage of one's own wrong. Musgrove v. Musgrove, 213 Ga. 610, 100 S.E.2d 577 (1957).
Equity in assessment proceedings.
- When owners of property abutting upon streets attack an assessment, only on the ground that the assessment is excessive, the owners should pay or offer to pay what the owners admit to be due. City of Camilla v. Cochran, 160 Ga. 424, 128 S.E. 194 (1925).
Submission to jurisdiction.
- This section requires that anyone going into a court and asking its aid shall submit oneself to the jurisdiction of the court and subject oneself to the imposition of such terms as well established equitable principles would require. Charleston & W.C. Ry. v. Hughes, 105 Ga. 1, 30 S.E. 972, 70 Am. St. R. 17 (1898).
Equity requires accounting for improvements.
- When one cotenant comes into equity and seeks its aid to enforce one's title, equity, in decreeing the relief, will require one to account for the improvements. Holland Furnace Co. v. Lowe, 172 Ga. 815, 159 S.E. 277 (1931).
No evidence of inequitable conduct.
- When the LLC granted the condominium association an easement to a perpetual non-exclusive right to access the LLC's private roadway system, there was no evidence of any inequitable conduct on the part of the LLC, which had consistently denied that the shuttle bus's passage through the gate during rush hour constituted a default under the easement, in an attempt to trap or deceive the association through the estoppel certificate; thus, the association did not show that there remained an issue of material fact as to the LLC's reasonable reliance on the estoppel certificate in the LLC's conveyance of real property to a third party. One Buckhead Loop Condo. Ass'n v. Regent Tower Holdings, 341 Ga. App. 5, 798 S.E.2d 633 (2017).
As a general rule, equity will not grant relief to a party who comes into court with unclean hands, or is guilty of an illegal or immoral act, nor aid a grantor or the grantor's administrator in seeking to cancel a security deed which was executed by the grantor for the purpose of hindering, delaying or defrauding creditors; these rules stem from the just and salutary principle that one will not be permitted to profit by the grantor's own wrong, and apply when a party is seeking the aid of equity in the enforcement of executory contracts or its aid under an executed contract. Fuller v. Fuller, 211 Ga. 201, 84 S.E.2d 665 (1954).
One with unclean hands cannot obtain relief in equity. Morgan v. Wright, 219 Ga. 385, 133 S.E.2d 341 (1963).
The deliberate attempt to take another man's wife from him, and entering into an engagement with her to marry at a time when she could not lawfully marry, and giving a ring to further such an unlawful engagement is a defiance of public policy and constitutes the rankest sort of unclean hands. Morgan v. Wright, 219 Ga. 385, 133 S.E.2d 341 (1963).
Equity may declare a trust to exist under the circumstances specified in this section, but will not do so at the insistence of a party who lacks clean hands with respect to those matters concerning which one seeks relief. Griggs v. Griggs, 242 Ga. 96, 249 S.E.2d 566 (1978).
Worker could not contend that equity should forbid the employer from asserting the worker's illegal status, based on the employer's failure to require that the worker complete the U.S. Department of Justice, Bureau of Immigration and Customs Enforcement Employment Eligibility Verification Form, since the worker filled out an employment application and provided the employer with a Social Security number which belonged to someone else. Martines v. Worley & Sons Constr., 278 Ga. App. 26, 628 S.E.2d 113 (2006).
Unclean hands shown.
- In a post-divorce proceeding, a trial court did not err in refusing to hold a mother in contempt and by finding that the father came to court with unclean hands because the evidence showed that the mother did not obtain certain medical evaluations and treatments for the parties' children as previously ordered because the father had not paid child support, had not paid one-half of the medical expenses already incurred for the children, and the children's doctor refused to see the children anymore due to the father's belligerent conduct toward the doctor and staff, thus, the father did have unclean hands for failing to pay the expenses and by the conduct toward the doctor. Higdon v. Higdon, 321 Ga. App. 260, 739 S.E.2d 498 (2013).
Parent who caused property to be transferred to the parent's child to shield the property from the father's creditors was not entitled to judgment against the child because the parent had unclean hands, under O.C.G.A. § 23-1-10. Under O.C.G.A. § 18-2-74(a)(1), the transfer was fraudulent because the transfer was made with actual intent to hinder, delay, or defraud the parent's creditors. Roach v. Roach, 327 Ga. App. 513, 759 S.E.2d 587 (2014).
No unclean hands for violating unenforceable covenant.
- Former employer's contention that the trial court erred by refusing to consider evidence of the former employee's unclean hands was rejected because the court acted well within the court's broad discretion when the court determined that the employee could not have unclean hands for violating an unenforceable covenant. Fortress Investment Group, LLC v. Holsinger, 354 Ga. App. 405, 841 S.E.2d 55 (2020).
This principle is applicable when one in an equity suit seeks both legal and equitable relief. One who avails oneself of an equitable remedy is as much bound by this principle as one who is asserting in such a court a purely equitable right. Wilder v. City of Atlanta, 40 Ga. App. 364, 149 S.E. 656 (1929); Snell v. Spalding Foundry Co., 180 Ga. 582, 180 S.E. 218 (1935); Wright v. City of Metter, 192 Ga. 75, 14 S.E.2d 443 (1941).
One who would have equity must do equity, and give effect to all equitable rights in the other party respecting the subject matter of the suit. This principle is applicable when one in an equity suit seeks both legal and equitable relief. Bass v. Mayor of Milledgeville, 180 Ga. 156, 178 S.E. 529 (1934), appeal dismissed, 295 U.S. 721, 55 S. Ct. 926, 79 L. Ed. 1675 (1935).
Inapplicable to action at law.
- Equitable doctrine of unclean hands had no application to an action at law, and, in a suit seeking to recover on three promissory notes, a trial court was not authorized to reduce the amounts shown to be due and payable on the notes on account of its finding of unclean hands. Park v. Fortune Ptnr., Inc., 279 Ga. App. 268, 630 S.E.2d 871 (2006).
Relationship between acts required.- Under Georgia law, the unclean hands doctrine does not attach to all prior bad acts. There must be a direct relationship between the equitable relief sought and the acts giving rise to the unclean hands. ABC Home Health Servs., Inc. v. IBM Corp., 158 F.R.D. 180 (S.D. Ga. 1994).
In a diversity contract dispute any relationship between the destruction of personal files on computer and software developer's equitable claims concerning Medicare reimbursements was merely tangential and would not support dismissal of developer's equitable counterclaims on the basis of unclean hands. ABC Home Health Servs., Inc. v. IBM Corp., 158 F.R.D. 180 (S.D. Ga. 1994).
Rule that one who would have equity must do equity refers to equitable rights respecting the subject matter of the action; it does not embrace outside matters. Atlanta Ass'n of Fire Ins. Agents v. McDonald, 181 Ga. 105, 181 S.E. 822 (1935).
The unclean hands maxim applies to equitable rights which relate directly to the cause of action; it does not embrace matters outside the subject matter of the action. Adams v. Crowell, 157 Ga. App. 576, 278 S.E.2d 151 (1981); Zappa v. Automotive Precision Mach., Inc., 205 Ga. App. 584, 423 S.E.2d 286 (1992).
In an action for specific performance, although it was found that the plaintiff's indebtedness had not been completely discharged, the clean hands doctrine did not apply because the court also found that the plaintiff was unaware of the existence or amount of the arrearages until the defendant testified about the arrearages at trial. Dobbs v. Dobbs, 270 Ga. 887, 515 S.E.2d 384 (1999).
Enforcement of third party rights.- A plaintiff with unclean hands who has proper standing may still bring an action to enforce the rights of others and secure relief on their behalf, even though doing so may result in an indirect benefit to the unclean plaintiff. West v. West, 825 F. Supp. 1033 (N.D. Ga. 1992).
Unclean hands maxim which bars a complainant in equity from obtaining relief has reference to an inequity which inflects the cause of action so that to entertain it would be violative of conscience; it must relate directly to the transaction concerning which complaint is made. Atlanta Ass'n of Fire Ins. Agents v. McDonald, 181 Ga. 105, 181 S.E. 822 (1935).
Rule that equity refuses to interfere when both parties are at fault does not apply when the faults are unequal. Atlanta Ass'n of Fire Ins. Agents v. McDonald, 181 Ga. 105, 181 S.E. 822 (1935).
An inequity that causes the invocation of the "clean hands" rule must relate directly to the transaction concerning which complaint is made. The rule refers to equitable rights respecting the subject matter of the action, and it does not embrace outside matters. Partain v. Maddox, 227 Ga. 623, 182 S.E.2d 450 (1971).
When a constitutional officer's previous act in complying with the Governor's demand for an undated resignation letter is unrelated to the relief sought in a judicial action seeking rightful possession of the constitutional office, no unclean hands are involved. Partain v. Maddox, 227 Ga. 623, 182 S.E.2d 450 (1971).
When husband deeded land to former wife in order to avoid any alimony claim against it by his second wife, doctrine of unclean hands barred husband's suit seeking to compel former wife to reconvey land to him on theory that she committed fraud on him in obtaining the deeds to the land. Williams v. Williams, 255 Ga. 264, 336 S.E.2d 244 (1985).
Not applicable when subject matter is marriage, not divorce.
- Since the "subject matter" and "transaction concerning which relief is sought" was marriage between the parties, not a divorce action, application of the unclean hands doctrine was erroneous. Pryor v. Pryor, 263 Ga. 153, 429 S.E.2d 676 (1993).
Not applicable to child custody cases.
- Maxim of unclean hands was inapplicable to child custody case, and, in any event, the father acted in good faith picking up the child after receiving a telephone call from the home of the grandmother. Lynch v. Horton, 302 Ga. App. 597, 692 S.E.2d 34 (2010), cert. denied, 563 U.S. 988, 131 S. Ct. 2447, 179 L. Ed. 2d 1210 (2011).
Real estate contracts.
- Property owners were entitled to specific performance under O.C.G.A. § 23-2-130 of a settlement agreement by which a seller agreed to re-purchase their property for $1 million. The fact that the owners allegedly attempted to have a third party business avoid its separate contractual obligation owed to the seller did not relate to the enforcement of the settlement agreement and could not bar specific performance of the owners' contract with the seller. Hampton Island, LLC v. HAOP, LLC, 306 Ga. App. 542, 702 S.E.2d 770 (2010).
Quiet title action.
- Trial court did not err in refusing to deny property owners' petition to quiet title due to unclean hands because adjoining landowners used a street for activities other than ingress and egress only occasionally, and there was no evidence that the owners observed those other uses on the owners two or three visits to the property prior to purchasing the property. Goodson v. Ford, 290 Ga. 662, 725 S.E.2d 229 (2012).
Cited in Mayor of Montezuma v. Brown Bros., 168 Ga. 1, 147 S.E. 80 (1929); Sheffield v. Preacher, 175 Ga. 719, 165 S.E. 742 (1932); Chapman v. McPherson, 177 Ga. 471, 170 S.E. 481 (1933); Shepard v. Veal, 178 Ga. 535, 173 S.E. 644 (1934); Stephens v. National Life Ins. Co., 179 Ga. 619, 176 S.E. 772 (1934); Gulf Oil Corp. v. Suburban Realty Co., 183 Ga. 847, 190 S.E. 179 (1937); Lee v. O'Quinn, 184 Ga. 44, 190 S.E. 564 (1937); Cooper v. Peevy, 185 Ga. 805, 196 S.E. 705 (1938); Aiken v. Armistead, 186 Ga. 368, 198 S.E. 237 (1938); Bowers v. Dolen, 187 Ga. 653, 1 S.E.2d 734 (1939); Harton v. Federal Land Bank, 187 Ga. 700, 2 S.E.2d 62 (1939); Interstate Bond Co. v. Cullars, 189 Ga. 283, 3 S.E.2d 756 (1939); Aven v. Steiner Cancer Hosp., 189 Ga. 126, 5 S.E.2d 356 (1939); Fulmore v. Macon Fed. Savs. & Loan Ass'n, 191 Ga. 151, 11 S.E.2d 790 (1940); Georgia Baptist Orphans Home, Inc. v. Moon, 192 Ga. 81, 14 S.E.2d 590 (1941); McMullen v. Carlton, 192 Ga. 282, 14 S.E.2d 719 (1941); Tanner v. Wilson, 193 Ga. 211, 17 S.E.2d 581 (1941); Behr v. City of Macon, 194 Ga. 334, 21 S.E.2d 169 (1942); Bray v. Malcolm, 194 Ga. 593, 22 S.E.2d 126 (1942); Raines v. Shipley, 197 Ga. 448, 29 S.E.2d 588 (1944); Allen v. Allen, 198 Ga. 269, 31 S.E.2d 483 (1944); Doolittle v. Bagwell, 199 Ga. 155, 33 S.E.2d 437 (1945); Jackson v. Jackson, 202 Ga. 634, 44 S.E.2d 250 (1947); Puckett v. Reese, 203 Ga. 716, 48 S.E.2d 297 (1948); Allen v. Wade, 203 Ga. 753, 48 S.E.2d 538 (1948); Reardon v. Bland, 206 Ga. 633, 58 S.E.2d 377 (1950); Vinson v. Citizens & S. Nat'l Bank, 208 Ga. 813, 69 S.E.2d 866 (1952); Carter v. City of Toccoa, 210 Ga. 167, 78 S.E.2d 487 (1953); Payne v. Jones, 211 Ga. 322, 86 S.E.2d 3 (1955); Miron Motel, Inc. v. Smith, 211 Ga. 864, 89 S.E.2d 643 (1955); Miller v. Levenson, 212 Ga. 496, 93 S.E.2d 753 (1956); Hardy v. Savannah Apts., Inc., 217 F. Supp. 649 (S.D. Ga. 1962); Pearl Optical, Inc. v. Pearle Optical of Ga., Inc., 218 Ga. 701, 130 S.E.2d 223 (1963); Williamson v. Cullom, 218 Ga. 740, 130 S.E.2d 715 (1963); Derrick v. Campbell, 219 Ga. 795, 136 S.E.2d 381 (1964); Walker v. Burns, 220 Ga. 467, 139 S.E.2d 389 (1964); Budreau v. Crawford, 222 Ga. 716, 152 S.E.2d 398 (1966); Straughan v. Brown, 223 Ga. 592, 157 S.E.2d 256 (1967); Hall v. Heard, 223 Ga. 659, 157 S.E.2d 445 (1967); Cowart v. Gay, 223 Ga. 635, 157 S.E.2d 466 (1967); O'Kelley v. Evans, 224 Ga. 49, 159 S.E.2d 418 (1968); Holcomb v. Approved Bancredit Corp., 225 Ga. 271, 167 S.E.2d 655 (1969); Bloodworth v. Bloodworth, 225 Ga. 379, 169 S.E.2d 150 (1969); Kiker v. Hefner, 409 F.2d 1067 (5th Cir. 1969); Harding v. City of Decatur, 226 Ga. 474, 175 S.E.2d 507 (1970); Harper v. Harper, 229 Ga. 583, 193 S.E.2d 616 (1972); Adams v. Smith, 129 Ga. App. 850, 201 S.E.2d 639 (1973); Berry v. Government Nat'l Mtg. Ass'n, 231 Ga. 503, 202 S.E.2d 450 (1973); Hill v. L/A Mgt. Corp., 234 Ga. 341, 216 S.E.2d 97 (1975); McArthur v. Southern Airways, Inc., 404 F. Supp. 508 (N.D. Ga. 1975); Wright v. Intercounty Properties, Ltd., 238 Ga. 492, 233 S.E.2d 160 (1977); First Nat'l Bank v. Blum, 141 Ga. App. 485, 233 S.E.2d 835 (1977); Williams v. Whitfield, 242 Ga. 639, 250 S.E.2d 486 (1978); Sapp v. ABC Credit & Inv. Co., 243 Ga. 151, 253 S.E.2d 82 (1979); Bloodworth v. Sandersville Prod. Credit Ass'n, 245 Ga. 40, 262 S.E.2d 804 (1980); Everson v. Franklin Disct. Co., 248 Ga. 811, 285 S.E.2d 530 (1982); Bank of Danielsville v. Seagraves, 167 Ga. App. 135, 305 S.E.2d 790 (1983); Murawski v. Roland Well Drilling, Inc., 188 Ga. App. 760, 374 S.E.2d 207 (1988); Holland Elec., Heating & Plumbing Co. v. Holland Heating & Air Conditioning, Inc., 259 Ga. 256, 379 S.E.2d 404 (1989); Dixon v. Murphy, 259 Ga. 643, 385 S.E.2d 408 (1989); City of Duluth v. Riverbrooke Properties, Inc., 233 Ga. App. 46, 502 S.E.2d 806 (1998); Rose v. Cain, 247 Ga. App. 481, 544 S.E.2d 453 (2001); Schoenbaum Ltd. Co., LLC v. Lenox Pines, LLC, 262 Ga. App. 457, 585 S.E.2d 643 (2003); Bishop Eddie Long Ministries, Inc. v. Dillard, 272 Ga. App. 894, 613 S.E.2d 673 (2005); Wyatt Processing, LLC v. Bell Irrigation Inc., 298 Ga. App. 35, 679 S.E.2d 63 (2009); Wallace v. Wallace, 345 Ga. App. 764, 813 S.E.2d 428 (2018), cert. denied, No. S18C1329, 2019 Ga. LEXIS 42, cert. denied, No. S18C1332, 2019 Ga. LEXIS 48 (Ga. 2019), cert. denied, 2019 U.S. LEXIS 6165, 205 L. Ed. 2d 30 (U.S. 2019).
Jurisdiction
Jurisdiction.
- Suits in equity shall be tried in the county where a defendant resides against whom substantial relief is prayed; and the defendant who would have equity must do equity, hence equity, having the parties before the court rightfully, will proceed to give full relief to all parties in reference to the subject matter provided the court has jurisdiction thereof. Pearson v. George, 211 Ga. 18, 83 S.E.2d 593 (1954).
This section has no relation to the subject matter of a suit to cancel a judgment for alimony that is void for want of jurisdiction, and under which judgment the former wife has no equitable rights to which the former husband should give effect. Gaither v. Gaither, 205 Ga. 572, 54 S.E.2d 600 (1949).
Pleading and Practice
Section applicable when both legal and equitable relief sought.
- The principle established by this section is as well applicable when one in an equity suit seeks both legal and equitable relief, as when one seeks a purely equitable right. Montgomery v. City of Atlanta, 162 Ga. 534, 134 S.E. 152 (1926).
A plaintiff cannot come into equity without first paying or tendering any amount admitted to be due. Pass v. Pass, 195 Ga. 155, 23 S.E.2d 697 (1942).
Trial court properly granted the supplier summary judgment on the purchaser's wrongful foreclosure claim because it was undisputed that the purchaser accepted and failed to repay at least $6,000 of the loan proceeds and failed to tender any amount in connection with the purchaser's claim of wrongful foreclosure. Sure, Inc. v. Premier Petroleum, Inc., 343 Ga. App. 219, 807 S.E.2d 19 (2017).
Before equity will hearken unto a suitor's prayer for equitable relief, one must offer to do full and complete equity to one's adversary. Renfroe v. Butts, 192 Ga. 720, 16 S.E.2d 551 (1941).
A party is not obliged to return that which one will be entitled to retain, as a condition to a cancellation; so, if a plaintiff has received no more than one was entitled to, one's offer to account for the same in adjustment of the differences between the parties sufficiently meets the requirement that one who seeks equity must do equity. Smith v. Merck, 206 Ga. 361, 57 S.E.2d 326 (1950).
Deposit with court is not tender to lender.
- In a wrongful foreclosure action, the trial court erred enjoining the lender's foreclosure proceedings because the borrowers failed to tender the amount owed under the matured home equity line of credit (HELOC) agreement to the lender in order to avoid foreclosure. Deposit of the funds in the court's registry did not constitute a tender to the lender. Oconee Fed. S & L Ass'n v. Brown, 349 Ga. App. 54, 825 S.E.2d 456 (2019).
The mere untimely payment of premiums, standing alone, when such untimely payments were accepted by the insurer would not constitute a failure "to do equity." Continental Cas. Co. v. Union Camp Corp., 230 Ga. 8, 195 S.E.2d 417 (1973).
Equity refuses to aid any suitor who fails to do equity to the opposite party respecting the subject matter of the suit. Irwin v. Life & Cas. Ins. Co., 204 Ga. 582, 50 S.E.2d 354 (1948).
If the fault of one decidedly overbalances the other, equity may interfere. Atlanta Ass'n of Fire Ins. Agents v. McDonald, 181 Ga. 105, 181 S.E. 822 (1935).
In order to do equity, a plaintiff is not obliged to return that which one will be entitled to retain. Dumas v. Dumas, 206 Ga. 767, 58 S.E.2d 830 (1950).
Defendant should not be compelled to perform unless the defendant receives the agreed exchange which is a condition of the defendant's performance under the contract. Krauth v. Bagley, 243 Ga. 87, 252 S.E.2d 504 (1979).
Equity will not decree the cancellation of an instrument when anything of value has been received until repayment is either made or tendered, or the defendant has stated that, should a tender be made, it would be refused. Wilson v. McAteer, 206 Ga. 835, 59 S.E.2d 252 (1950).
When the plaintiff is seeking affirmative relief in a court of equity, the plaintiff cannot have the relief sought without observing the equities of the transaction. Atlanta Banking & Sav. Co. v. Johnson, 179 Ga. 313, 175 S.E. 904 (1934).
Unclean hands not shown.
- Plaintiff (1) did not lack clean hands in a suit wherein plaintiff successfully obtained a permanent injunction against defendant from engaging in a commercial business on defendant's residential property, and (2) did not violate the restrictive covenant by engaging in court reporting work on a home computer and receiving business mail at plaintiff's residence because such activities did not increase the traffic in the subdivision and did not have any effect on the value, status, stability, and residential character of plaintiff's home or the subdivision, unlike defendant's parking of cement trucks and other commercial vehicles at defendant's home. Roberts v. Lee, 289 Ga. App. 714, 658 S.E.2d 258 (2008).
Unclean hands issue not amendable to summary judgment.
- Denial of summary judgment on the plaintiff's affirmative unclean hands defense to the defendant's counterclaim for a prescriptive easement was affirmed because whether the defendant acted inequitably was a question of fact not amendable to summary judgment. Sorrow v. 380 Properties, LLC, 354 Ga. App. 118, 840 S.E.2d 470 (2020).
Lender's successor who sought equitable relief based on forged deed not entitled to relief.
- In an action by a lender's successor seeking equitable relief based on the lender's failure to obtain a signed security deed at the time of a refinancing, because a filed copy of the security deed bearing the purported signatures of the borrowers was forged, the successor had unclean hands, O.C.G.A. § 23-1-10, and was not entitled to relief. Bank of N.Y. Mellon v. Edmondson, 344 Ga. App. 823, 812 S.E.2d 299 (2018).
A party seeking specific performance of a contract must show substantial compliance with that party's part of the agreement in order to be entitled to a decree. Kirk v. First Ga. Inv. Corp., 239 Ga. 171, 236 S.E.2d 254 (1977).
Impact of subsequent default.
- When the plaintiff is not in default when the plaintiff files suit, the occurrence of a subsequent default of the plaintiff is not by itself a sufficient reason for denying specific performance. Jordan v. Flynt, 240 Ga. 359, 240 S.E.2d 858 (1977).
Payment of amount admittedly due.
- Under application of this maxim, before a borrower who has executed a deed to secure a debt can have affirmative equitable relief such as the setting aside of a sale by the creditor under exercise of a power contained in a security deed, and injunction against the creditor and persons claiming under the creditor, to prevent interference with the debtor's possession of the property, such debtor must pay or tender to the creditor the principal and interest due. Biggers v. Home Bldg. & Loan Ass'n, 179 Ga. 429, 176 S.E. 38 (1934); Redwine v. Frizzell, 184 Ga. 230, 190 S.E. 789 (1937).
One seeking to enjoin the enforcement of an execution, on the ground that usury has been computed thereon, must first offer to pay the amount admitted or shown to be due, before a court of equity would intervene in one's behalf. Sharpe v. City of Waycross, 185 Ga. 208, 194 S.E. 522 (1937).
When a petition seeking to enjoin the enforcement of a paving assessment execution of the ground of dormancy shows on its face, as a matter of law, that a portion of such execution has not become dormant and is still due and unpaid, such petition fails to set forth a cause of action for the relief sought, in the absence of any tender or offer to pay the sums shown to be due. Sharpe v. City of Waycross, 185 Ga. 208, 194 S.E. 522 (1937).
Pursuant to the basic principle of equity, in this section a borrower who has executed a deed to secure debt is not entitled to an injunction against a sale of the property under a power in the deed, unless the borrower first pays or tenders to the creditor the amount admittedly due. This is true notwithstanding any allegation that the defendant has breached some independent covenant. Bower v. Certain-Teed Prod. Corp., 216 Ga. 646, 119 S.E.2d 5 (1961); Wright v. Intercounty Properties, Ltd., 238 Ga. 492, 233 S.E.2d 160 (1977); P.B.R. Enters., Inc. v. Perren, 243 Ga. 280, 253 S.E.2d 765 (1979).
In order to enable plaintiffs to come into equity it is essential in the first instance that they should have paid or tendered the amount admitted to be due. Failure to pay or tender to the defendant the full amount before filing the petition stands as a bar to any of the relief sought, and the defect is fatal to the further prosecution of the action. State Mut. Ins. Co. v. Strickland, 218 Ga. 94, 126 S.E.2d 683 (1962).
A borrower who has executed a deed to secure debt is not entitled to an injunction against a sale of the property under a power in the deed, unless he first pays or tenders to the creditor the amount admittedly due. The same rule applies when one standing in the place of the borrower seeks an injunction to prevent a transferee or assignee of such deed from selling the property for the purpose of satisfying the secured debt. Crockett v. Oliver, 218 Ga. 620, 129 S.E.2d 806 (1963).
In a suit by plaintiff-debtor seeking cancellation of a note and security deed, the failure to offer payment or tender of the balance due on the loan or to offer any excuse for not doing so brings the plaintiff under the provisions of this section. Coile v. Finance Co. of Am., 221 Ga. 584, 146 S.E.2d 304 (1965).
Before one who has given a deed to secure one's debt can have set aside in equity a sale by the creditor in exercise of the power conferred by the deed, and injunction to prevent interference with the debtor's possession of the property conveyed by the deed, one must pay or tender to the creditor the amount of principal and interest due. Coile v. Finance Co. of Am., 221 Ga. 584, 146 S.E.2d 304 (1965).
Refusal of injunction when no payment.
- When one brings a petition in equity seeking to enjoin a sale under a power of sale contained in a security deed, which deed contains an acceleration clause, alleging as ground for injunction that one is entitled to a credit on the indebtedness secured thereby, "and that the proper application of said credit will liquidate all of the installments claimed to be in arrears, leaving nothing past due on said indebtedness," and when, on interlocutory hearing, it appears from the evidence that upon proper application of the alleged credit there would still be a considerable amount past due, and there is no offer to pay or tender to the grantee in the security deed of the amounts due thereunder, it is not error for the judge to refuse to grant an injunction. Brinson v. Federal Land Bank, 182 Ga. 477, 185 S.E. 828 (1936).
Benefits to opposite party prior to cancellation.
- Before a borrower who has executed to the same grantee two deeds to secure debts can have affirmative equitable relief to set aside a sale by the creditor under exercise of the power of sale contained in the deeds, and an injunction against the creditor and the persons claiming under the creditor to prevent interference with the debtor's possession of a portion of the property, such debtor must pay or tender to the creditor the principal and interest which the debtor admits to be due, and would not be relieved of this duty by reason of the fact that the creditor was demanding of the debtor more than the debtor owed. Harpe v. Stone, 212 Ga. 341, 92 S.E.2d 522 (1956).
Before an instrument can be canceled the benefits received thereunder must be returned or tendered to the opposite party. Brooks v. Southern Clays, Inc., 220 Ga. 152, 137 S.E.2d 630 (1964).
Before a borrower, who has executed a deed infected with usury, can have affirmative equitable relief, such as injunction to prevent exercise of the power of sale by the grantee in such security deed, one must pay or tender to the grantee the principal sum due. I.D.S. Homes Corp. v. Lucas, 228 Ga. 521, 186 S.E.2d 745 (1972).
An offer to restore whatever of value one has received under a contract is a condition precedent to bringing an action for cancellation or rescission of the contract, and such tender must be made before such action is commenced. Dimmick v. Pullen, 224 Ga. 452, 162 S.E.2d 427 (1968).
A tender of the past due payments under indebtedness evidenced by deeds to secure debt must be made when a complainant seeks the aid of equity in setting aside and cancelling a deed under a foreclosure sale. Keith v. Yarbrough, 231 Ga. 770, 204 S.E.2d 111 (1974).
Municipalities must also do equity.
- When a municipality makes proof of its claim to the superintendent of banks (now commissioner of banking and finance) on the basis of a creditor and obtains from the superintendent of banks one or more dividends on an equal basis with general depositors, before the municipality would be authorized to come into equity seeking to declare an implied trust to be impressed upon the general funds remaining in the hands of the superintendent of banks and priority over general depositors in the distribution of such funds, it would be necessary for the municipality to do equity by returning such portion of the dividends received by it as were derived from assessments against stockholders. Town of Douglasville v. Mobley, 169 Ga. 53, 149 S.E. 575 (1929).
Ready and willing to pay is not sufficient.
- One seeking equitable relief from the enforcement of a tax execution based upon an assessment allegedly excessive, or for other cause, but admitting, as here, that one owes a part of the tax covered by such execution, must, prior to the institution of an equitable action for cancellation and injunction, pay or offer to pay the amount of taxes admitted to be due, in order to obtain the relief sought. An allegation that one is "ready and willing to pay" an amount of tax admitted to be due is not an "offer" to pay as required by law. Zugar v. Scarbrough, 186 Ga. 310, 197 S.E. 854 (1938); Holloway v. De Vane, 212 Ga. 182, 91 S.E.2d 350 (1956).
Payment of certain taxes before seeking relief.
- One seeking relief from excessive tax levies, but admitting, either expressly or by necessary implication, that he owes part of the tax covered by such executions, must pay or offer to pay the amount of the taxes admitted to be due, in order to obtain the relief sought. Pierce Trading Co. v. City of Blackshear, 182 Ga. 649, 186 S.E. 721 (1936); Elder v. Home Bldg. & Loan Ass'n, 185 Ga. 258, 194 S.E. 745 (1937); Clisby v. City of Macon, 191 Ga. 749, 13 S.E.2d 772 (1941); Kiker v. Hefner, 224 Ga. 511, 162 S.E.2d 731 (1968); Adcock v. Sutton, 224 Ga. 505, 162 S.E.2d 732 (1968); Allen v. Thomas, 225 Ga. 650, 171 S.E.2d 132 (1969).
Petition seeking an injunction either to restrain tax sales or to prevent a continuation of the alleged discriminatory assessment practice, was fatally defective for its failure to allege a tender at least of the amounts which would have been due by the plaintiffs as taxes if their real estate had been assessed for taxation at the lowest basis of value applied to the more favorably treated personalty. Mayor of Savannah v. Fawcett, 186 Ga. 132, 197 S.E. 253 (1938).
In suit to cancel a tax deed upon the ground of excessive levy, seeking an accounting as to some of the defendants and general relief as to all of the defendants when it appeared from allegations of the petition that each of the defendants was liable to the plaintiffs for trespass upon the property in a sum greater than the amount of the taxes for which the property was sold, and that the plaintiffs were willing to do equity, the allegations in regard to excessive levy and the prayer for cancellation on that ground were not deficient for failure of the plaintiffs to allege a previous tender of the amount of the taxes. Zugar v. Scarbrough, 186 Ga. 310, 197 S.E. 854 (1938).
A tax sale that is not specifically attacked on the ground that the levy of the execution was excessive, but is attacked on the ground that the sheriff failed to sell the realty levied on according to the advertisement of sale, which recited that so much of the realty levied on would be sold as was sufficient to satisfy the executions, and instead sold the realty in bulk although the realty was capable of subdivision into lots or tracts less than the whole which could have been sold for the amount of the executions, would not prevent the application of this equitable principle. Durham v. Smith, 186 Ga. 565, 198 S.E. 734 (1938).
One who by inheritance succeeds to the interest of such original owner in the property will not be heard in equity when seeking to cancel the deed of the purchaser at such sale, on the ground that the levy was excessive, without paying or offering to pay all unpaid taxes due on that property when the ownership thereon was in the person from whom it was inherited. Lowe v. City of Atlanta, 191 Ga. 76, 11 S.E.2d 891 (1940), later appeal, 194 Ga. 317, 21 S.E.2d 171 (1942).
One seeking relief against collection of municipal taxes on the ground of excessiveness of the levies, or for other cause, but admitting, either expressly or by necessary implication, that one owes part of the tax covered by such executions, must pay or offer to pay the amount of the taxes admitted to be due, in order to obtain the relief sought. Kent v. Mayor of Alamo, 193 Ga. 445, 18 S.E.2d 769 (1942).
When a taxpayer makes a tax return of property subject to ad valorem tax, he admits that there is a liability for taxes on the property returned and the taxpayer must pay or offer to pay the amount of taxes admitted to be due, in order to obtain the relief from overassessment. Trust Inv. & Dev. Co. v. City of Marietta, 216 Ga. 788, 119 S.E.2d 568 (1961).
When there is no allegation in a petition that property owners have paid or offered to pay the city any amount as the taxes due on the property, the owners are for such failure in no position to apply to a court of equity to enjoin the city from selling their property under executions for taxes due. Smith v. City of E. Ellijay, 217 Ga. 364, 122 S.E.2d 112 (1961).
When a taxpayer seeks to prevent the collection of an ad valorem tax, and the taxpayer admits, either expressly or impliedly, that the taxpayer is liable for at least a part of the tax sought to be collected the taxpayer must first pay or offer to pay the amount of the tax legally due, before enjoining the tax's collection. Freeman v. Keaton, 223 Ga. 505, 156 S.E.2d 347 (1967).
Those who seek the aid of a court of equity to restrain and enjoin the taxing authorities of a county from collecting or attempting to collect taxes alleged to have been illegally assessed against the property of the petitioners, and alleging in their petition, and thus admitting thereby, that they owe some taxes for the year in question, must show that they have tendered and offered to pay the amount of taxes in fact due in order to obtain the relief sought. Freeman v. Keaton, 223 Ga. 505, 156 S.E.2d 347 (1967).
Application of equity in realty transactions.
- As a general rule a petition to a court of equity to cancel a deed as a cloud on the title of the grantor, brought by the executrices of the grantor's estate, on the basis that it is void as representing a sale by a wife of her separate estate to her husband, for a valuable consideration, without an order of the superior court of her domicile, when there is no offer to return the consideration recited and acknowledged in the deed to have been received, is demurrable (now motion to dismiss), but when it is alleged in an amendment to the petition that the consideration stated in the deed from the wife to the husband has been only partly paid to a stated amount, that the defendant has been in possession of the property so conveyed for a stated number of years, that the rents, issues, and profits for that period are at least a stated amount, and an offer is made to pay the defendant any difference between the consideration actually paid and the rents, issues, and profits, and the petition contains a prayer for general relief as well as for cancellation and injunction, such allegation by amendment is a sufficient compliance with the requirements of this section, and it is not necessary that a formal tender of the consideration stated in the deed be made. Franklin v. Cruce, 187 Ga. 58, 200 S.E. 135 (1938).
A borrower who has executed a deed to secure a debt is not entitled to an injunction against a sale of the property under a power in the deed, unless one first pays or tenders to the creditor the amount admittedly due. Oliver v. Slack, 192 Ga. 7, 14 S.E.2d 593 (1941); Cook v. Young, 225 Ga. 26, 165 S.E.2d 727 (1969).
In suit by wife for injunction against sale of property under deed, if the petition has shown upon its face, either expressly or impliedly, that any part of the purchase-money had been paid by or for the bank, or that any binding obligation for such payment had been made, it may be that the plaintiff could not maintain an action for equitable relief without averring a repayment of the sum or a tender thereof before suit, or alleging some valid reason for her failure to do so. Deen v. Baxley State Bank, 192 Ga. 300, 15 S.E.2d 194 (1941).
When vendees of land may have been excused from tendering the correct amount, or any amount, to the vendor before suit for specific performance, this does not relieve the vendor from offering in their pleadings to pay the amount which is due or the amount which might be found due by decree of the court. Lively v. Munday, 201 Ga. 409, 40 S.E.2d 62 (1946).
In a suit by a purchaser for specific performance of a contract for the sale of land, it should be made to appear that before institution of the action the plaintiff had paid or tendered the purchase-money according to the contract, or that tender had been waived by the defendant. Washington Mfg. Co. v. Wickersham, 201 Ga. 635, 40 S.E.2d 206 (1946).
Purchaser seeking specific performance of contract of purchase of realty is required to do equity by tendering the amount admittedly due under the contract in order to obtain the relief sought. Shepard v. Gettys, 206 Ga. 392, 57 S.E.2d 272 (1950).
When purchaser seeking performance of contract of purchase of realty offered to do equity by paying the full amount of the purchase price, but the defendant repudiated the contract and declared the defendant's intentions not to carry out the contract, the defendant's repudiation was a waiver of tender, and under the law relieved the petitioner of any obligation to tender. Shepard v. Gettys, 206 Ga. 392, 57 S.E.2d 272 (1950).
Trial court did not err by dismissing a homeowner's claim against the homeowner's mortgage lender for injunctive relief following foreclosure of the homeowner's home because under application of the maxim that one who would have equity must do equity, O.C.G.A. § 23-1-10, the owner was required to tender the amount due under the security deed and note. Stewart v. SunTrust Mortg., Inc., 331 Ga. App. 635, 770 S.E.2d 892 (2015).
When one party in default.
- Since a defendant is not required to perform under the terms of a contract if the plaintiff is currently in default, specific performance may not be decreed against appellee unless it is conditioned on appellant's curing of any default on the appellant's part, but if the decree is so conditioned, this section will be satisfied. Jordan v. Flynt, 240 Ga. 359, 240 S.E.2d 858 (1977); Krauth v. Bagley, 243 Ga. 87, 252 S.E.2d 504 (1979).
The decree of specific performance is improper when the plaintiff was in default at the time suit was filed, the plaintiff remains in default at the time of the decree, and the decree of specific performance is not conditional on the plaintiff curing the plaintiff's default. Jordan v. Flynt, 240 Ga. 359, 240 S.E.2d 858 (1977).
Plaintiff defaulting after filing suit.
- When the plaintiff is not in default when the plaintiff files suit, the occurrence of a subsequent default of the plaintiff is not by itself a sufficient reason for denying specific performance. Krauth v. Bagley, 243 Ga. 87, 252 S.E.2d 504 (1979).
Cancellation of deed when parties not in compliance
- Petition for cancellation of deed was not subject to demurrer (now motion to dismiss) because the petitioner failed to tender to the defendant moneys paid for taxes, improvements, interest, and payment on loan, as well as the consideration paid by the defendant to the plaintiff, when the petition alleged that no part of the consideration named in the deed had been paid and that the rent collected by the defendant was enough to have paid the installments and interest due against that property, and there was nothing in the record to indicate that any improvements were made by the defendant, or any taxes paid by the defendant. Wellborn v. Johnson, 204 Ga. 389, 50 S.E.2d 16 (1948).
Prerequisites to recovery following tax sale.
- While ordinarily, before one would be entitled to set aside a tax sale on the grounds that the levy under the execution was excessive, one must tender to the purchaser at such sale the amount paid by such purchaser at the sale, no such tender is required when the petition alleges that the purchaser had not paid any part of the amount of its bid to the sheriff. Bibb County v. Elkan, 184 Ga. 520, 192 S.E. 7 (1937); Durham v. Smith, 186 Ga. 565, 198 S.E. 734 (1938).
Generally, equity will not cancel a conveyance under which anything has been received, until repayment is made. An exception to the rule requiring tender is when the petition alleges that the defendant has been in possession, receiving the rents and profits of the premises conveyed, and prays for an accounting therefor by the defendant, and that the correct amount due the defendant be declared and set up. Harrell v. Burch, 195 Ga. 96, 23 S.E.2d 434 (1942).
Uncertainity of tax execution impacting equity.
- Allegations of a petition that the petitioner's mutual savings and loan association has been unable to ascertain the exact amount that a tax execution should have issued for, and that the taxing authorities of the city have "refused to ascertain the exact amount legally due by" petitioner, when considered in the light of the fact that the city contends that the total amount of the execution is the amount "legally due" and that the ascertainment of the amount for which the petitioner contends the execution should have issued is a mere matter of mathematical calculation, based upon the valuation of the property which the petitioner admits is legally taxable and the tax rate applicable thereto, do not allege a sufficient reason for the failure of the petitioner to pay or offer to pay the amount admittedly due. Elder v. Home Bldg. & Loan Ass'n, 185 Ga. 258, 194 S.E. 745 (1937).
Denial of relief in equity.
- When to a proceeding to foreclose a deed to secure debt as an equitable mortgage, which prays for judgment for principal, interest, and attorney's fees, a debtor files a plea in which it is alleged that the petitioner held as collateral fire insurance policies with a loss-payable clause in favor of the petitioner aggregating more than the amount of the debt, which had become due and payable as the result of a fire some months before there was a default on the debt, and that the insurance could have been collected at any time, but was not collected due solely to the negligence of the petitioner who had made no demand for payment, and that the attorney's fees sought in the foreclosure proceeding would have been unnecessary had such collection been made, such plea alleged facts sufficient to show a breach of duty, both in law and in equity, upon the part of the creditor, which would prevent it from collecting attorney's fees and deny the creditor any relief in equity. Irwin v. Life & Cas. Ins. Co., 204 Ga. 582, 50 S.E.2d 354 (1948).
Payment of additional expenses.
- When the creditor has negligently failed to perform the creditor's duty, which results in default on the main debt, the resulting injury or additional expense should be paid by the creditor rather than by the debtors. Irwin v. Life & Cas. Ins. Co., 204 Ga. 582, 50 S.E.2d 354 (1948).
Specific performance denied.
- In a suit for specific performance, the trial court erred by granting summary judgment to the plaintiff because numerous fact issues remained, including whether the plaintiff made the requisite tender of the necessary documents and payment, whether the plaintiff's execution of corporate loan documents constituted a breach of the agreement and, if so, whether the breach was material, whether unclean hands barred the plaintiff's specific performance claim, and other issues. Krieger v. Bonds, 333 Ga. App. 19, 775 S.E.2d 264 (2015).
RESEARCH REFERENCES
Am. Jur. 2d.
- 27 Am. Jur. 2d, Equity, § 131 et seq.
C.J.S.- 30 C.J.S., Equity, § 90 et seq.
ALR.
- He who comes into equity must come with clean hands, 4 A.L.R. 44.
Right of victim of practical joke to recover against its perpetrator, 9 A.L.R. 364.
Unfitness as affecting right to restoration by mandamus to office from which one has been illegally removed, 36 A.L.R. 508.
Rule that denies remedy in case of an illegal contract as applicable to an action of conversion, replevin, or detinue for property possession of which was obtained by defendant, or by a third person through whom he claims, as the result of such a contract with the plaintiff or his predecessor in interest, 132 A.L.R. 619.
Rule denying relief to one who conveyed his property to defraud his creditors as applicable where the threatened claim which occasioned the conveyance was paid or was never established, 21 A.L.R.2d 589.
Vendee's liability for use and occupancy of premises, where vendor disaffirms an unenforceable land contract, 49 A.L.R.2d 1169.
Purchaser's misrepresentations as to intended use of real property as ground for vendor's equitable relief from contract and deed, 35 A.L.R.3d 1369.
Rule denying recovery of property to one who conveyed to defraud creditors as applicable where claim which motivated the conveyance was never established, 6 A.L.R.4th 862.