Rountree v. Finch

• Decision Date: 14 July 1904
• Citation: 120 Ga. 743,48 S.E. 132
• Parties: ROUNTREE v. FINCH et al.
• Court: Georgia Supreme Court

48 S.E. 132

120 Ga. 743

ROUNTREE

v.FINCH et al.

Supreme Court of Georgia.

July 14, 1904.

DEEDS—BOND FOR TITLE—MORTGAGES—PRIORITIES—DEMURRER—MOTION TO DISMISS PETITION.

1. That a special demurrer to a petition has been dismissed because not filed at the appearance term is no reason why a motion in the nature of a general demurrer to dismiss the petition may not be made at the trial.

2. Where land is conveyed by deed to secure a loan, bond for title being given for a reconveyance to the debtor upon payment of the debt, and the latter transfers the bond to another, who pays the debt and takes a reconveyance from the creditor, the right of a mortgagee to enforce his mortgage, given upon the land by the debtor after the execution of the security deed, depends, in the absence of an attack upon the bona fides of the transfer of the bond for title, upon the mortgage antedating the transfer; and where, in such a case, the mortgagee brings an equitable petition against the debtor and the transferee, who is the holder of the title, to enforce the collection of the mortgage debt, a failure to allege that the mortgage antedated such transfer renders the petition subject to general demurrer.

(Syllabus by the Court.)

Error from Superior Court, Brooks County; R. G. Mitchell, Judge.

Action by S. S. Rountree against M. L. Finch and another. Judgment for defendants, and plaintiff brings error. Affirmed.

S. S. Rountree, as surviving partner of Rountree & Co., brought an equitable action in the superior court of Brooks county against Mrs. M. L. Finch, of that county, and Mrs. Jimmie L. Boone, of Fulton county. The petition alleged that on March 1, 1887, Mrs. Finch executed to the Georgia Loan & Trust Company a deed to a certain described house and lot in the town of Quitman, to secure a loan of $300, payable five years from date, with interest at 8 per cent., payable semiannually on the 1st days of March and September of each year; that on July 31, 1888, Mrs. Finch gave a mortgage on the same property to J. P. Brooks to secure a note for $430, which note and mortgage had been transferred to Rountree & Co., the mortgage having been recorded August 1, 1888; that on January 2, 1892, the Georgia Loan & Trust Company conveyed the property by quitclaim deed to Mrs. Jimmie L. Wood, who subsequently became, by marriage, Mrs. Jimmie L. Boone, the deed reciting that Mrs. Finch had sold the house and lot to Mrs. Wood by transferring to her the bond for title, and that Mrs. Wood had fully paid the debt; that this deed was recorded in 1892; that petitioner did not know how much of the $300 due the company Mrs. Boone paid, but recognized that she had a prior claim on the property for whatever amount she did pay; that, even if she paid the full amount of $300, the rents, issues, and profits from the property amounted to more than the interest on the debt; that the mortgage was foreclosed in 1898, in the name of Brooks, for I the use of Rountree & Co., and the fi. fa.levied upon the property, which was claimed by Mrs. Boone, the claim affidavit being made by J. B. Finch as her agent; that on October 15, 1900, petitioner mailed a registered letter to Mrs. Boone, which her receipt showed she received the next day, which letter contained the following language: "The lien of the mortgage [given by Mrs. Finch to Brooks, and transferred to Rountree & Co.] attached before you secured any interest in the property. We recognize your right to be paid $300.00 with interest thereon, after deducting the rents, issues, and profits of the property received by the Georgia Loan & Trust Co., and by you, and we desire to pay you this amount, and will thank you to give us a statement showing it, so that we can pay you, and have the land sold and the proceeds of the sale applied, first to the reimbursement of us of this amount and enough of the balance to satisfy the execution issued by the superior court of Brooks county in favor of J. P. Brooks for the use of Rountree & Co. v. Mrs. M. L. Finch;" that petitioner in January delivered a copy of this letter to J. B. Finch, who, as agent for Mrs. Boone, made the claim affidavit; that neither of them replied to the letter; and that petitioner "has no way of ascertaining the exact...