Duke Et Ux v. Story

• Citation: 116 Ga. 388,42 S.E. 722
• Parties: DUKE et ux. v. STORY et al.
• Decision Date: 29 October 1902
• Court: Supreme Court of Georgia

42 S.E. 722

116 Ga. 388

DUKE et ux.

v.STORY et al.

Supreme Court of Georgia.

Oct. 29, 1902.

EQUITABLE MORTGAGE—LIMITATIONS.

1. A security deed which does not refer in any way to the debt to secure which it was given, or furnish any evidence of its existence, cannot be foreclosed as an equitable mortgage, and a money judgment obtained thereon, if the obligation secured by the deed is barred by the statute of limitations.

¶ 1. See Limitation of Actions, vol. 23, Cent. Dig. § 653.

(Syllabus by the Court.)

Error from superior court, Jackson county; R. B. Russell, Judge.

Action by H. E. Story and others, executors, against M. N. Duke and wife. Judgment for plaintiffs, and defendants bring error. Reversed.

W. I. Pike and Strickland & Green, for plaintiffs in error.

H. H. Perry and C. B. Henry, for defendants in error.

ADAMS, J. The executors of Mary E. Long proceeded against Duke for the posses slon of certain real estate described in their petition. Subsequently the defendant's wife, who, according to his answer, claimed the property, was made a party defendant by amendment, without objection, and the petition was amended, also without objection, so as to pray for a money judgment against the land described in the deed from the original defendant to the plaintiffs' testatrix, upon the ground that this deed was given to secure a note given by the defendant to the testatrix. This instrument did not refer to the obligation in any way. Upon its face it is an absolute deed, and recites a consideration of $600. The statute of limitations was pleaded, on the ground that the note secured by this deed was barred, and, this being so, the deed could not be foreclosed as an equitable mortgage, and a money judgment obtained thereon, whatever may be the rights of the plaintiffs in the court below under the declaration as originally framed. This plea was not sustained in the charge of the court or by the verdict of the jury, and the defense indicated is made in the motion for new trial and the bill of exceptions in this case.

We are constrained to sustain the defense. It seems to us that the case is substantially covered by the decision of this court in the case of Story v. Doris, 110 Ga. 65, 35 S. E. 314. We do not think that the law which permits a mortgage to be foreclosed at any time within 20 years, notwithstanding the bar of the debt secured by the mortgage, applies, because the mortgage, as required by the Code, "specifies the debt to secure which it is given." A mortgage, therefore, furnishes written evidence, under the hand and seal of the mortgagor, of the existence of the debt against the property specified, and its foreclosure is within the terms of the specialty agreement We have not been able to find any authority that requires another conclusion from that reached in this case. Hughes v. Edwards, 9 Wheat 489, 6 L. Ed. 142, involved the foreclosure of a mortgage. Lewis v. Hawkins, 90 U. S. 119, 23 L. Ed. 113, is a ease where the vendor of lands gave a bond for titles, and took purchase-money notes from his vendor, and it arose in a state where the vendor's lien was recognized. It was held that a discharge in bankruptcy of the purchaser, while it would relieve him from paying the notes, would not give him title to the land, and that the vendor could proceed notwithstanding the bar of the statute of limitations as to the notes. Some of the observations of the court may seem to sustain the defendants in error, but they cannot be followed, in view of the adjudication of this court referred to above, and our conclusion as to the law in Georgia. In Criss v. Criss, 28 W. Va. 388, the trust deed involved plainly described the debt, and the fact that the deed was given to secure the same. This is also true of the case of Arrington v. Rowland, 97 N. C. 127, 18. K. 555, and that of Bank v. Guttscblick, 14 Pet 19, 10 L. Ed 335. The case of Browne v. Browne, 17 Fla. 607, 35 Am. Rep. 96, also cited by the defendants in error, involved the foreclosure of a mortgage which described the debt; and the court, in its opinion, quotes with approval the following language of the court of appeals in the case of Borst v. Corey, 15 N. Y. 510: "The action to foreclose a mortgage is brought upon an instrument under seal, which acknowledges the existence of the debt to secure which the mortgage is given; and, by reason of the seal,...