Berry v. Williams
| Decision Date | 27 April 1914 |
| Docket Number | (No. 322.) |
| Citation | 81 S.E. 881,141 Ga. 642 |
| Parties | BERRY. v. WILLIAMS et al. |
| Court | Georgia Supreme Court |
(Syllabus by the Court.)
A deed absolute in form may be shown to have been made to secure a debt, where the maker remains in possession of the land. Mercer v. Morgan, 136 Ga. 632, 71 S. E. 1075.
[Ed. Note.—For other cases, see Mortgages, Cent. Dig. §§ 60-66, 84-94; Dec. Dig. § 32.*]
Actual possession is notice to the world of the right or title of the occupant. Mercer v. Morgan, supra; Bridger v. Exchange Bank, 126 Ga. 821, 56 S. E. 97, 8 L. R. A. (N. S.) 463, 115 Am. St. Rep. 118; Austin v. Southern Home, etc., Asso., 122 Ga. 439, 50 S. E. 382.
[Ed. Note.—For other cases, see Vendor and Purchaser, Cent. Dig. §§ 540-545, 548-562; Dec. Dig. § 232.*]
Where the owner of land executes a deed of the character mentioned in the first note, and remains in possession of the land, and the grantee conveys the land to another, who has no actual notice of the undisclosed agreement that the deed should operate as a security for debt, and who has made no inquiry of the occupant, the latter may pay or tender the amount of the debt to the first grantee, and maintain an equitable action against the first grantee and the remote grantee for cancellation of both deeds as clouds upon his title, and to have the title decreed to be in him.
[Ed. Note.—For other cases, see Cancellation of Instruments, Cent. Dig. §§ 39-42; Dec. Dig. § 27.*]
If the first grantee absents himself so that a tender cannot be made to him, a suit of the character mentioned in the preceding note may be maintained without a tender to the creditor in person, if the plaintiff offers to pay the money into court for him.
(a) Essential parties were not before the court in the case of Grace v. Means, 120 Ga. 638, 59 S. E. 811, to determine the balance due and necessary to be tendered by a purchaser.
[Ed. Note.—For other cases, see Cancellation of Instruments, Cent. Dig. §§ 33-38; Dec. Dig. § 24.*]
Where a suit of the character above mentioned is instituted in the county of the residence of the last grantee, on whom the petition is duly served, and there is a prayer for an order for service by publication (under the Civil Code, §§ 5553, 5558) on the first grantee, who is alleged to be a nonresident of the state, it is erroneous at the first term for the judge, without having issued an order for service by publication, to dismiss the action on demurrer interposed by the remote grantee.
[Ed. Note.—For other cases, see Dismissal and Nonsuit, Cent. Dig. § 96; Dec. Dig. § 48.*l
Error from Superior Court, Baldwin County; J. B. Park, Judge.
Action by Roxie Berry against C. B. Williams and others. Judgment for defendants, and plaintiff brings error. Reversed.
D. S. Sanford and Hines & Vinson, all of Milledgeville, for plaintiff in error. Livingston Kenan, of...
To continue reading
Request your trial
-
Perimeter Development Corp. v. Haynes
...of a court declaring his contract void, in the absence of a satisfactory showing that the transaction was bona fide. In Berry v. Williams, 141 Ga. 642, 81 S.E. 881, it was held: '1. A deed absolute in form may be shown to have been made to secure a debt, where the maker remains in possessio......
-
Crews v. Cisco Bros. Ford-Mercury, Inc., FORD-MERCUR
...Ga.App. 442, 100 S.E.2d 466), or when to do so would be unreasonable. Smith v. McWhorter, 173 Ga. 255, 273, 160 S.E. 250; Berry v. Williams, 141 Ga. 642, 81 S.E. 881. Compare International Software Solutions v. Atlanta Pressure, etc., Co., 194 Ga.App. 441, 390 S.E.2d Appellant Crews and app......
-
Pitts v. Cox, (No. 6633.)
...in possession of the property. Askew v. Thompson, 129 Ga. 325, 58 S. E. 854; Mercer v. Morgan, 136 Ga. 632, 71 S. E. 1075; Berry v. Williams, 141 Ga. 642, 81 S. E. 881; Copelin v. Williams, 152 Ga. 692, 111 S. E. 186. But where the grantee in an absolute deed conveys to his wife the land th......
- Berry v. Williams