Chapman v. Ayer

• Decision Date: 27 February 1895
• Citation: 23 S.E. 131,95 Ga. 581
• Parties: CHAPMAN v. AYER et al.
• Court: Georgia Supreme Court

23 S.E. 131

95 Ga. 581

CHAPMAN

v.AYER et al.

Supreme Court of Georgia.

Feb. 27, 1895.

Absolute Deed fob. Security — Redemption — Action by Administkatob—Nonsuit.

1. Where one loaned money to another, for which the latter gave a promissory note, payable on a specified day in the future, and to secure its payment gave a deed to land worth considerably more than the amount of the note, at the same time taking from the lender a bond for titles, conditioned for a reconveyance of the land upon the payment of the note, there being in the bond a recital of the terms of the note, followed by the words, "Time beingof the essence of the contract, " these writings, taken altogether, and fairly construed, did not, of themselves alone, amount to a conclusive and binding contract between the parties to the effect that, if the note was not promptly paid at maturity, the security deed should become an absolute deed of sale, so as to prevent the borrower from afterwards redeeming the land by full payment oil the note. Under these circumstances the right of redemption was not lost or defeated by the mere fact that the note remained unpaid after its maturity, and such right still existed, unless, after maturity and nonpayment, the parties actually contracted to the contrary.

2. The borrower having died, and her administrator having brought against the lender an action for the purpose of establishing the title of the intestate to the land, and the balance due upon the note, after deducting certain credits thereon, having been paid into court for the lender's use, and the evidence for the plaintiff being such that the jury might have inferred that the borrower had never in fact relinquished the right to redeem the land by paying the debt, and also that there had never been an actual agreement by which the security deed became converted into a deed of absolute sale, it was error to grant a nonsuit.

(Syllabus by the Court.) _t

Error from superior court, Bibb county; J. L. Hardeman, Judge.

Action by Reuben Chapman, administrator, against Thomas R. Ayer and others. To a judgment of nonsuit, plaintiff brings error. Reversed.

A. Proudfit, for plaintiff in error.

J. L. Gerdine, for defendants in error.

SIMMONS, C. J. It appears from the record that Anna Chapman, on June 3, 1892, gave her note to Thomas R Ayer for $142.40, payable December 12, 1892, and to secure its payment executed a deed to a lot of land in the city of Macon, taking at the same time a bond from Ayer, conditioned for a reconveyance of the land upon the payment of the note. In the bond a recital of the term of the note was followed by the words, "Time being the essence of the contract." The note was not paid at the time it fell due. Subsequently the maker of the note died, and Ayer commenced proceedings by dispossessory warrant to oust her administrator from the land covered by the deed. The administrator thereupon filed his petition in the superior court, praying for injunction,...