Duke Et Ux v. Story

CourtSupreme Court of Georgia
Writing for the CourtADAMS
Citation116 Ga. 388,42 S.E. 722
Decision Date29 October 1902
PartiesDUKE et ux. v. STORY et al.

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...

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15 practice notes
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • April 10, 1912
    ...Am. Rep. 96; Crawford v. Hazelrigg, 117 Ind. 63, 18 N. E. 603, 2 L. R. A. 139;Kellar v. Sinton's Ex'r, 14 B. Mon. (Ky.) 307;Duke v. Story, 116 Ga. 388, 42 S. E. 722; Crooker v. Holmes, 65 Me. 195, 20 Am. Rep. 687; Demuth v. Old Town Bank, 85 Md. 315, 37 Atl. 266, 60 Am. St. Rep. 322;Norton ......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • April 10, 1912
    ...Am. Rep. 96); Crawford v. Hazelrigg, 117 Ind. 63 (18 N.E. 603, 2 L. R. A. 139); Kellar v. Sinton's Ex'r, 14 B. Mon. 307; Duke v. Story, 116 Ga. 388 (42 S.E. 722); Crooker v. Holmes, 65 Me. 195 (20 Am. Rep. 687); Demuth v. Old Town Bank, 85 Md. 315 (37 A. 266, 60 Am. St. Rep. 322); Norton v.......
  • Atwood v. Northern Pacific Railway Co.
    • United States
    • United States State Supreme Court of Idaho
    • July 30, 1923
    ...Bank v. Post Falls etc. Co., 29 Idaho 587, 161 P. 242; Brucker v. O'Connor, 115 Ga. 95, 41 S.E. 245; Deering Harvester Co. v. Thompson, 116 Ga. 388, 42 S.E. 772; Skinner v. Terry, 107 N.C. 103, 12 S.E. 118.) In determining the question of discretion, the power of the court should be freely ......
  • Sammons v. Nabers, No. 12187.
    • United States
    • Georgia Supreme Court
    • May 12, 1938
    ...325, 326; Story v. Doris, 110 Ga. 65, 69, 35 S.E. 314; Conway v. Caswell, 121 Ga. 254, 257, 48 S.E. 956, 2 Ann.Cas. 269; Duke v. Story, 116 Ga. 388, 42 S.E. 722. These rules are applicable to a foreclosure as an equitable mortgage of a deed to secure debt. Pusser v. A. J. Thompson & Co., 13......
  • Request a trial to view additional results
15 cases
  • Fitzgerald v. Flanagan
    • United States
    • Iowa Supreme Court
    • April 10, 1912
    ...Am. Rep. 96; Crawford v. Hazelrigg, 117 Ind. 63, 18 N. E. 603, 2 L. R. A. 139;Kellar v. Sinton's Ex'r, 14 B. Mon. (Ky.) 307;Duke v. Story, 116 Ga. 388, 42 S. E. 722; Crooker v. Holmes, 65 Me. 195, 20 Am. Rep. 687; Demuth v. Old Town Bank, 85 Md. 315, 37 Atl. 266, 60 Am. St. Rep. 322;Norton ......
  • Ed. Fitzgerald v. Flanagan
    • United States
    • United States State Supreme Court of Iowa
    • April 10, 1912
    ...Am. Rep. 96); Crawford v. Hazelrigg, 117 Ind. 63 (18 N.E. 603, 2 L. R. A. 139); Kellar v. Sinton's Ex'r, 14 B. Mon. 307; Duke v. Story, 116 Ga. 388 (42 S.E. 722); Crooker v. Holmes, 65 Me. 195 (20 Am. Rep. 687); Demuth v. Old Town Bank, 85 Md. 315 (37 A. 266, 60 Am. St. Rep. 322); Norton v.......
  • Atwood v. Northern Pacific Railway Co.
    • United States
    • United States State Supreme Court of Idaho
    • July 30, 1923
    ...Bank v. Post Falls etc. Co., 29 Idaho 587, 161 P. 242; Brucker v. O'Connor, 115 Ga. 95, 41 S.E. 245; Deering Harvester Co. v. Thompson, 116 Ga. 388, 42 S.E. 772; Skinner v. Terry, 107 N.C. 103, 12 S.E. 118.) In determining the question of discretion, the power of the court should be freely ......
  • Sammons v. Nabers, No. 12187.
    • United States
    • Georgia Supreme Court
    • May 12, 1938
    ...325, 326; Story v. Doris, 110 Ga. 65, 69, 35 S.E. 314; Conway v. Caswell, 121 Ga. 254, 257, 48 S.E. 956, 2 Ann.Cas. 269; Duke v. Story, 116 Ga. 388, 42 S.E. 722. These rules are applicable to a foreclosure as an equitable mortgage of a deed to secure debt. Pusser v. A. J. Thompson & Co., 13......
  • Request a trial to view additional results

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