25 Ga. App. 279 | Ga. Ct. App. | 1920
1. Where an instrument appears on its face to he an absolute bill of sale to personalty, but does not contain a defeasance clause, and (as the agreed statement of facts shows) was not accompanied by an actual or constructive delivery of the property into the possession of the vendee, extrinsic evidence is admissible to show that what appears to be a bill of sale was intended only as a security for debt. Denton v. Shields, 120 Ga. 1078 (48 S. E. 423) ; Pitts v. Maier, 115 Ga. 285 (41 S. E. 570) ; Ellison v. Wilson, 7 Ga. App. 214 (66 S. E. 631).
2. The instrument being an equitable mortgage, it was error for the court to dismiss the plaintiff’s affidavit to foreclose the same on the ground that he was proeeding illegally.
Judgment reversed.
cited: (1) 130 Ga. 271; 7 Ga: App. 214; 106 Ga. 361; 120 Ga. 1078 (2); 18 Ga. App. 48; 144 Ga. 354, 355, 356.
cited: Civil Code (1910), § 3298; 115 Ga. 285; 114 Ga. 270; 120 Ga. and 7 Ga. App., supra.