I dissent from the rulings in the third and fourth headnotes and from the corresponding divisions of the opinion, and hence from the judgment of reversal. The grantor in the security deed being dead at the time of the sale, I think that one who thereafter acquired from her sole heir at law a conveyance of the property did not thereby obtain a right to attack a voidable sale under the power. Such sale passed the title, although a defeasible title. The sounder view of this question, in my opinion, was that stated in McCall v. Mash,89 Ala. 487 (7 So. 770, 10 Am. St. R. 145), where it was written: "Where a mortgagee has purchased at a sale under a power contained in the mortgage, without the consent of the mortgagor, the latter has a right, within a reasonable time, to disaffirm the sale, and ask redemption and an account of the rents and profits; but if he takes no steps to disaffirm the sale, he can not assign, sell, nor convey the land so as to vest in his assignee the right to disaffirm the sale, and redeem in his own name."
While the facts in Williams v. Williams Co., 122 Ga. 178 (50 S.E. 52, 106 Am. St. 100), were different, the same principle was involved. That case, it seems to me, aligned this court with those that hold that the right to disaffirm a voidable sale is a personal one; and if this view of that decision be correct, it would seem logically to follow that the present plaintiff can not be heard to disturb the sale. In the Williams case an effort was made by a *Page 687 judgment creditor to avoid a voidable sale, under power, of the property of his debtor. As to that, this court said: "The mortgagor could ratify an irregularity in the execution of the power; or he could within a reasonable time disaffirm. But at the sale title, even if defeasible, passed, and as long as he remained silent, he was bound, and he being bound, so were his privies in estate." The first headnote in that decision lays down the principle which led the court to deny the creditor the right attempted to be asserted, in these words: "The right to disaffirm a voidable sale is personal to the mortgagor." In a later case this court, on a different state of facts, said: "Neither a judgment creditor of the mortgagor whose judgment is rendered subsequently to the execution and record of the mortgage, nor a purchaser at the sale under such a judgment subsequently to a sale under the power, is allowed to impeach a purchase by the mortgagee at his own sale." Payton v. McPhaul, 128 Ga. 510,517 (supra).
The editor of a work frequently relied on as an authority treated the decisions of this court as having the same alignment of this question as this just indicated, for in 37 Am. Jur. § 673, the statement is made that the right to disaffirm a sale of the character here involved is personal to the mortgagor, and can not be exercised by his transferee in interest, citing therefor the two Georgia cases hereinbefore referred to.
When it is a case of first impression in this court, and the decisions from other jurisdictions are in conflict, as pointed out in the leading opinion, I am the less reluctant to yield my views to those of the majority as to which of the two conflicting rules should by this court be followed; but under the holding in the Williams case, supra, it would apparently add uncertainty to our law to hold, as the court does in the instant case, that the right to disaffirm such a sale is not a personal one but that it passes under a deed afterwards made, conveying the property. Assuming for the moment that the sole heir at law could do so, the grantor in the security deed being dead, the fact is that she took no steps to defeat the defeasible title which the purchaser at the sale acquired. Her inaction perfected that title, and therefore she as sole heir at law had none to convey. The right now sought to be asserted did not pass to the plaintiff by the deed she executed to him. *Page 688