“What it may have brought or what it may have been regarded as being worth on the market at times relatively close to the date of sale may be considered as aids in arriving at market value at the time of sale — which is what the court is charged with determining in granting or denying an order of confirmation.”
How later courts described this case
- “What it may have brought or what it may have been regarded as being worth on the market at times relatively close to the date of sale may be considered as aids in arriving at market value at the time of sale — which is what the court is charged with determining in granting or denying an order of confirmation.”
- what property may have brought or what it might have been regarded as being worth on market at time relatively close to date of sale may be considered as aid in arriving at market value at time of foreclosure
Written by the judges who cited it.
The opinion
Clark, Judge,
dissenting. I find myself in disagreement with my colleagues as to Division 4 of the majority opinion.
Having exercised his discretion to reopen the matter during the same term at which the original orders were entered and having conducted a new hearing supplementary to the original trial for consideration of additional evidence, the judge below was then further required to exercise sound legal. discretion to determine if the new evidence, which was a sale completed by appellees for $95,000 warranted ratification of the previous confirmation. I recognize the extent of discretion here vested in the trial judge where the statute expressly requires the court must be "satisfied the *766 property so sold brought the true market value on such foreclosure sale.” Nevertheless, it has been held that such vast discretion when exercised in confirmation of judicial sales must be "sound legal discretion.” Hall v. Taylor, 133 Ga. 606 ( 66 SE 478 ); Wingfield v. Bennett, 36 Ga. App. 27 ( 134 SE 840 ).
What is encompassed in the term "true market value?” As is stated at page 60 in "The Appraisal of Real Estate” (5th Ed., 1967), the authoritative manual published by American Institute of Real Estate Appraisal, there are three methods of making such estimate: Cost of reproduction less depreciation from deterioration and functional and economic obsolescence, capitalization of net income, and comparable sales. Here within less than three months of the foreclosure sale there was an arm’s length sale of the specific parcel for $95,000 between a willing seller and a willing buyer, neither being under abnormal pressure. Such sales must be regarded as establishing the true market value. Applying the yard-stick of "sound legal discretion,” I regard it to be necessary to hold adversely to that portion of the second confirmation order of March 3 which in effect disregarded this consummated sale.
I recognize there can be argued an inconsistency exists in my agreeing with the majority as to its ruling at the conclusion of the first hearing and urging a reversal as to the second. I see no inconsistency, as the record of the first hearing supports the judge’s ruling that $74,414.95 was the true market value on the evidence then before the court. But with the matter reopened and the evidence presented showing an arm’s length sale closed for $95,000 within less than three months of the foreclosure sale, that development in the record changes the outcome. The fact that it occurred post hoc does not affect the situation because this occurred while the matter was still within the breast of the court.
Appellees’ advocate ably articulates the legal locution that he who seeks equity must do equity. He points to the manner in which his clients magnanimously offered three alternatives to the opposite parties as contrasted with the *767 manner in which adversaries permitted the property to deteriorate, failed to make the mortgage payments while collecting rents, transferred the property to a dummy corporation, and two of the parties having purchased the realty when the loan deeds were in default. To such contention based upon meting out justice in accordance with "Aristotelian principles of retribution and reciprocity,” 1 I point out that in Dockery v. Parks, 224 Ga. 369 ( 162 SE2d 332 ) the Supreme Court rules this procedure sub judice as not being equitable in nature. The actions of the parties, whether commendable or reprehensible, cannot change the fact that the record of the re-opened hearing shows $95,000 to be the true market value, a sum almost $20,000 in excess of the foreclosure sale price. This is particularly true in the light of the history and purpose of the statute which was aimed at preventing unfortunate mortgagors from being saddled with unwarranted deficiency judgments in addition to loss of the mortgaged property.
I am authorized to state that Judge Quillian concurs in this dissent.
This phrase is copied from p. 460 of Kennedy Justice by Victor S. Navasky (N. Y., Atheneum — 1971), a study of the administration of the office of United States Attorney General during the administration of Robert F. Kennedy.