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Lawskills.com Georgia Caselaw
MOCK v. DARBY.
40636.
EBERHARDT, Judge.
Declaratory judgment. Bulloch Superior Court. Before Judge Usher.
418, 422 (71 SE2d 773). Accord: Parks v. Jones, 88 Ga. App. 188 (76 SE2d 449); Darling v. Jones, 88 Ga. App. 812, 815 (78 SE2d 94); Griffin v. Hardware Mut. Ins. Co., 93 Ga. App. 801, 803 (1) (92 SE2d 871); Buffington v. New Hampshire Fire Ins. Co., 104 Ga. App. 139, 141 (1) (121 SE2d 270). See St. Paul Fire &c. Co. v. Johnson, 216 Ga. 437 (117 SE2d 459). The petition here presented a justiciable controversy and the general demurrer was properly overruled.
This is a suit for declaratory judgment based on the following facts: In 1960, Darby (plaintiff) executed to Mock a security deed in the amount of $4,122, repayable in 120 monthly installments running to August 1, 1970. The security deed contained the following provision: "Fire and extended coverage insurance will be provided on the dwelling . . . equal to at least the unpaid principal and interest, and at no costs to . . . [Mock]." (Emphasis added). In October, 1962, after 25 payments, the house burned. Settlement was made by Darby with the insurance company. Darby now seeks a declaration that he need pay Mock only the principal and interest due at the time suit was filed ($3,593.05), alleging a continuing offer of this amount. He bases this on the intent of the provision quoted. Mock contends that plaintiff has no right to prepay the debt in less than the remaining amount due under the security deed (95 payments at $50 each for a total of $4,750).
Mock's general demurrers were overruled. The trial judge found for Darby and ordered the satisfaction of the security deed and note on payment of $3,593.05. Mock excepts only to the general demurrer order.
Allen & Edenfield, contra.
Neville & Neville, for plaintiff in error.
DECIDED APRIL 24, 1964.
Monday October 6 23:08 CDT


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