McCrimmon v. National Bank of Savannah

• Decision Date: 11 November 1920
• Docket Number: 11484,11485.
• Citation: 105 S.E. 44,25 Ga.App. 825
• Parties: MCCRIMMON v. NATIONAL BANK OF SAVANNAH. NATIONAL BANK OF SAVANNAH v. MCCRIMMON.
• Court: Georgia Court of Appeals

105 S.E. 44

25 Ga.App. 825

MCCRIMMON v. NATIONAL BANK OF SAVANNAH.

NATIONAL BANK OF SAVANNAH v. MCCRIMMON.

Nos. 11484, 11485.

Court of Appeals of Georgia, Second Division

November 11, 1920

Syllabus by the Court.

The court correctly construed as a deed the instrument on which the claimant based his claim.

The court did not err in refusing to admit in evidence the instrument offered by the plaintiff for the purpose of attacking the title of the claimant's grantor, under whom plaintiff also claimed.

Additional Syllabus by Editorial Staff.

A "defeasance clause" is such a provision as will of itself render the instrument null and void upon the mere payment of the obligation by the debtor, and without the interposition of any act on the part of the grantee.

Error from Superior Court, Treutlen County; E. D. Graham, Judge.

Proceeding on execution by W. T. McCrimmon against the Durden Lumber & Timber Company, with claim by National Bank of Savannah. Judgment for claimant upon a directed verdict, and plaintiff brings error, and claimant takes a cross-bill of exception. Judgment on main bill of exceptions affirmed, and cross-bill dismissed.

W. J Wallace, of Soperton, for plaintiff in error.

Edward S. Elliott, of Savannah, for defendant in error.

JENKINS P.J.

1. An instrument, which recites that it is given to secure a debt and which by its terms purports to convey the absolute and unconditional title to property, will, in the absence of a defeasance clause, be construed as a deed and not as a mortgage, although it confers upon the grantee the right or option, upon default by the debtor, to appoint a trustee with power to sell the property and pay the debt. A defeasance clause is such a provision as will of itself render the instrument null and void upon the mere payment of the obligation by the debtor, and without the interposition of any act on the part of the grantee. Pitts v. Maier, 115 Ga. 281, 41 S.E. 570; Scott v. Hughes, 124 Ga 1000, 1002, 53 S.E. 453; Powell on Actions for Land, § 387. Under the ruling made in Ward v. Lord, 100 Ga. 407, 28 S.E. 446, although the form of the conveyance may be absolute, yet if the instrument further provides that the property be held in trust for the payment of the debt, and only so long as the debt remains unpaid, the creation of a trust under such terms operates as a defeasance, and converts the instrument into a mortgage--this for the reason that by the terms of the instrument the trust becomes executed upon the payment of the debt. But where the title to the property is absolutely and unconditionally passed to the creditor, that is, without any provision that it is to remain in him only so long as the debt remains unpaid, and where the payment of the...