Brioe v. Lane

• Decision Date: 27 August 1892
• Citation: 90 Ga. 294,15 S.E. 823
• Parties: Brioe v. Lane.
• Court: Georgia Supreme Court

15 S.E. 823

90 Ga. 294

Brioe

v.Lane.

Supreme Court of Georgia.

Aug. 27, 1892.

Deed—What Constitutes.

An instrument in these words: "$75.00. Georgia, Brooks county. On or by October 1st after date, I promise to pay Mitchell Brice or hearer seventy-five dollars, with interest from maturity at 8 per cent, per annum, and reasonable charges, not less than ten per cent., for attorneys' fees, if any are incurred in the collection hereof, hereby waiving and expressly renouncing all homestead and exemption rights, for value received. And to secure the payment of said indebtedness I hereby bargain, sell, and convey to the payee of this note, his heirs and assigns, the following property, which is expressly declared to be my individual property, free from any lien whatever, to wit, [description of land.] And, in case of failure to pay said indebtedness at the maturity thereof, the payee of this note, his agent, attorney, heirs, or assigns, are hereby irrevocably authorized and empowered to seize and take possession of said property, and to sell the same for cash at public outcry at the justice court grounds of the Tallokas district, after having advertised said property at said court grounds for ten days by written or printed notice, and apply the proceeds of said sale to the payment of said indebtedness, and all costs of said sale, including ten per cent, additional for further attorneys' fees, and the balance, if any, to be subjected to my order. And the payee of said note, his agent, attorney, heirs, and assigns, are fully authorized to bid at said sale, and to make a fee-simple title to said property to the purchaser or purchasers, "—construed in the light of the pleadings and section 1969 of the Code, is not a mere mortgage with a power of sale, but is a deed, and passed the title to the grantee therein named. Roland v. Coleman, 76 Ga. 652; Gibson v. Hough, 60 Ga. 588; Carter v. Gunn, 64 Ga. 651.

(Syllabus by the Court.)

Error from superior court, Brooks county; A. H. Hansell, Judge.

Action by William A. Lane, administrator, against Mitchell Brice. Judgment for plaintiff. Defendant brings error. Reversed.

The following is the official report:

This case was tried before the judge below upon the pleadings. It turns upon the construction of a certain instrument executed by Martha Strickland to Mitchell Brice. The judge below held that this paper was a mortgage and not a deed, and that expenses of administration of the estate of Martha Strickland and bills for medical attendance had priority over it, and should be...