46 Ga. 133 | Ga. | 1872
Without question the common law rules make a mortgage which, on its face was to secure future advances, sufficiently certain : 4 Kent, 175 ; 1st Hilliard on Mortgages, 210-215, where the subject is fully treated and numerous authorities cited. But it is said that our Code changes this rule. Its language is, section 1945 : “ No particular form is necessary to constitute a mortgage. It must clearly indicate the creation of a lien, specify the debt to secure which it is given and the property on which it is to take effect.” But this is, in truth, nothing more than the common law required, and amounts only to saying that the form of the undertaking is immaterial. If the material elements of a mortgage are there — sufficient certainty as to what the parties intend — the paper is good as a mortgage, though there be no words of conveyance or any other of the usual forms of a mortgage. In Leeds vs. Cameron, 3 Sumner’s Reports, 492, Judge Story, in commenting upon very similar language in a statute of New Hampshire, the words were: “stating thesum of money to be secured,” says it can hardly be supposed that it was the intent of the Legislature to make void all mortgages for in
If there be anything in law called an estoppel, it would seem that one who makes a mortgage upon land is estopped from denying he had title to the land, or at least such a right to it as authorized him to make the mortgage. It is, in the first place, a deed, and it is a settled rule that one is estopped by his deed even if the donee have not acted on it.
Again, in this case it is clear that the mortgagee advanced his money on the faith of this deed, and this would make it a good estoppel in pais. So far, therefore, as the mortgagees are concerned, they are estopped from denying their right to make this mortgage according to its terms, unless, indeed, they set up fraud in the mortgagor, which they do not do. As to the other parties they have no business here. They
Judgment affirmed.