Scott v. Hughes

• Decision Date: 19 February 1906
• Citation: 53 S.E. 453,124 Ga. 1000
• Parties: SCOTT. v. HUGHES et al.
• Court: Georgia Supreme Court

53 S.E. 453

(124 Ga. 1000)

SCOTT.

v.HUGHES et al.

Supreme Court of Georgia.

Feb. 19, 1906.

1. Mortgages—Deed Intended as Security.

A paper in the usual form of a warranty deed, but containing a clause providing that should the grantor pay to the grantee a stated sum of money by a given date, the instrument "shall be void; otherwise, of full force"—is a mortgage, and not a deed.

[Ed. Note.—For cases in point, see vol. 35, Cent Dig. Mortgages, §§ 4, 60.]

2. Courts — City Courts — Jurisdiction — Foreclosure of Mortgages.

A city court has no jurisdiction to foreclose a mortgage on realty.

3. Judges—Powers—Correction of Record.

A judge of a court of record may of his own motion, when approving the minutes at the close of the term, expunge therefrom a judgment which the court is, as to the subject-matter, without jurisdiction to render.

[Ed. Note.—For cases in point, see vol. 30, Cent. Dig. Judgment, §§ 725.]

(Syllabus by the Court.)

Error from City Court of La Grange; Frank Harwell, Judge.

Action by Mrs. F. S. Scott against Mrs. Ada Hughes and another. There was a judgment for defendants, and plaintiff brings error. Affirmed.

Mrs. Scott brought suit in the city court against Hughes and his wife, alleging that Mrs. Hughes as principal, and Hughes as security, were indebted to her in the sum of $250 principal, "for money had and received, as shown by a deed or contract" attached to the petition. The plaintiff prayed for a general judgment, and for a special lien on the property described in the paper above referred to. The paper exhibited with the petition was in form of an ordinary warranty deed, in which Mrs. Hughes purported to convey to Mrs. Scott a described parcel of land, but it contained immediately following a description of the land and immediately preceding the habendum clause the following: "It is hereby agreed that should Mrs. Ada Hughes pay to Mrs. F. L. Scott ($275.00) two hundred and seventy-five dollars by Dec. 1, 1902, this instrument shall be void, otherwise in full force." The attestation clause recited that Mrs. Hughes hereunto set her hand, etc. The paper was signed by both Mrs. Hughes and her husband, and attested by two witnesses, one of them a notary public. Mrs. Hughes was served, and there was a return of non est inventus as to Hughes. Mrs. Hughes filed an answer, in which she denied each and every allegation in plaintiff's petition, and for further plea alleged that the debt sued on was the debt of her husband, and further, that the deed attached to the petition was void for usury, the amount of the usury being set out in the plea. The case was submitted to a jury, who returned a verdict in favor of the plaintiff for $250 principal, $28 interest, and costs of suit, there being nothing in the verdict in reference to the claim of special lien set up in the petition. Upon this verdict counsel for the plaintiff drafted a judgment in favor of the plaintiff for the amount specified in the verdict, declaring that the plaintiff should have a special lien on the land described in the paper attached to the petition. This judgment was handed to the clerk, who entered it on the minutes of the court. Subsequently, and during the term, the judge examined the minutes and made the following entry thereon: "Examined and approved, with this exception: In the judgment of Mrs. F. L Scott v. Mrs. Ada Hughes and C. J. Hughes, the part therein entering a special lien against the property therein described is stricken from said judgment and the minutes with this correction are approved." Counsel for Mrs. Scott excepted to this order of the judge correcting the minutes, and in a bill of exceptions bringing the case to this court assigns error upon this order, the error assigned being, that the paper relied on by the plaintiff was a deed entitling her to a special lien; that the pleadings authorized a special lien, the defendant not having questioned the plaintiff's right by plea or otherwise, and that it was too late after verdict to raise the question; that the attorney of record has the right to sign a judgment in accordance with the pleadings, and that the court has no authority to strike the judgment so signed up.

E. T. Moon, for plaintiff in error.

D. J. Gaffney,...