Story v. Doris

Decision Date28 February 1900
Citation110 Ga. 65,35 S.E. 314
PartiesSTORY et al. v. DORIS.
CourtGeorgia Supreme Court

LIMITATION OF ACTIONS — REAL ESTATE — EQUITABLE LIEN — MORTGAGES — ABSOLUTE CONVEYANCES—FORECLOSURE—LOST DEED— ESTABLISHMENT.

1. A creditor cannot, for the purpose of collecting a debt which has become barred by the statute of limitations, maintain against his debtor an action having for its object the enforcement of an equitable lien on land arising from an absolute conveyance thereof to the creditor and a contemporaneous parol agreement that he was to hold the title as security for the debt.

2. When, in such a case, the deed to the creditor is executed, not by the debtor himself, but by one from whom he had contracted to purchase the land, such conveyance cannot be regarded as an instrument "in the nature of a mortgage" executed by the debtor himself, and, as such, enforceable by foreclosure at any time within 20 years from the maturity of the secured debt,

3. The petition in the present case was not maintainable as an action for the recovery of land, nor as a proceeding to establish a copy of a lost deed.

(Syllabus by the Court.)

Error from superior court, Richmond county; E. L. Brinson, Judge.

Bill by E. J. Doris, administrator, etc., against Elizabeth Story and others, to enforce an equitable lien on real estate. From a decree overruling demurrers to the complaint, defendants bring error. Reversed.

H. C. Roney, L. Phinizy, and J. S. & W. T. Davidson, for plaintiffs in error.

P. J. Sullivan, for defendant in error.

LUMPKIN, P. J. The bill of exceptions in this case presents for determination the question whether or not the court below erred in refusing to dismiss on demurrers, general and special, the petition of E. J. Doris, as adminisistrator de bonis non of Patrick Doris, against Elizabeth Story, Albert H. Davidson, and others. The material allegations of the petition are, in brief, as follows: The defendant Albert H. Davidson is the executor of John S. Davidson, deceased, who was the executor of Albert H. Story. Said defendant is, therefore, the executor of said Story. In 1878, Story purchased from the city of Augusta a lot, of which he at once took possession. He paid in cash the first installment of the purchase money. The balance thereof was subsequently paid to the city, for Story, by Patrick Doris, to whom the city conveyed the lot in 1879. Besides the sum thus advanced by Doris for Story, the latter was indebted to the former upon an open account, and it was agreed between the two that Doris should hold the deed as security for both debts, the total amount of which was $917.05. After the death of Doris, which occurred in 1880, Mary A. Doris became the administratrix of his estate. Story informed her of the facts in regard to the transaction between himself and her intestate, tendered to her the sum of $947.05, with interest, and demanded that she make him a deed to the lot. She declined to do so, for the reason that he had no bond for titles, and because she was advised that she had no authority to make the conveyance without an order of court. In 1882, Story filed an equitable petition against the administratrix, admitting therein his indebtedness to the estate of Patrick Doris, and praying that upon payment of the same she be decreed to convey the lot to him. That petition was never brought to trial, but was stricken from the docket, apparently for want of prosecution, the record not, however, disclosing that any formal order of dismissal was ever entered. Mary A. Doris died after the filing of that petition. David Graham qualified as her executor, and was discharged from his trust as such in 1888. He knew nothing of the debt of Story to Patrick Doris, or of the pendency of Story's petition. Story died in 1884, in possession of the lot, without having paid any portion of his indebtedness to Doris, and the same has never been paid. The deed from the city to Patrick Doris was never recorded, and is not in the possession of E. J. Doris, the present petitioner. He attaches a copy, admitted to be true and correct by Story in his lifetime. The prayers of his petition, besides those seeking an injunction to prevent a sale of the lot, the appointment of a receiver to take charge of it pendente lite, and "all other special and general relief to which petitioner may be entitled, " were: (1) That a copy of the deed be established "if it appears that the same is lost or destroyed"; (2) that the title to the lot be decreed to be in Patrick Doris, or his legal representatives, as security for the debt of $947.05, with interest thereon; (3) "that, if the court should decree that the said deed from the city council to Patrick Doris was in the nature of a mortgage, that the same be foreclosed for $947.05 and interest"; (4) that petitioner have a decree for $947.05 and interest, "to be...

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3 cases
  • Pusser Et Ux v. A. J. Thompson & Co
    • United States
    • Georgia Supreme Court
    • March 10, 1909
  • Pusser v. A.J. Thompson & Co.
    • United States
    • Georgia Supreme Court
    • March 10, 1909
    ... ... but would compel the creditor to take that course ...          The ... decisions in the cases of Story v. Doris, 110 Ga ... 65, 35 S.E. 314, and Duke v. Story, 116 Ga. 388, 42 ... S.E. 722, do not conflict with what is here held. In the ... former ... ...
  • Story v. Doris
    • United States
    • Georgia Supreme Court
    • February 28, 1900
    ...35 S.E. 314 110 Ga. 65 STORY et al. v. DORIS. Supreme Court of GeorgiaFebruary 28, Syllabus by the Court. 1. A creditor cannot, for the purpose of collecting a debt which has become barred by the statute of limitations, maintain against his debtor an action having for its object the enforce......

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