Block v. Allen

99 Ga. 417 | Ga. | 1896

Atkinson, Justice.

While the instrument under which the lien is claimed in the present case might not amount, in strict law, to a technical mortgage, yet it falls directly within the class of instruments which have heretofore been before this court for construction. In the case of Park v. Snyder et al., 78 Ga. 571, and in the cases of Jackson v. Carswell and Freeman v. Bass, 34 Ga. 279 and 355 respectively, instruments of like kind were construed to create a lien upon the property. In the case of Park v. Snyder, above cited, the court held, that while the instrument construed was not in strict law a mortgage, it nevertheless constituted a lien in the nature of a mortgage upon the property conveyed. In was an encumbrance upon the title, which could only be removed by the payment of the debt which the land was given to secure. So that, in the present case, the instrument sued upon is an encumbrance upon the title. There is a direct retention in the conveyance of a lien to secure the unpaid purchase money, and that purchase money was represented in the notes sued upon in the present case. By the act approved October 24th, 1887 (Acts of 1887, p. 64), establishing a uniform method of procedure in this State, there is such an amalgamation of the equity and common law jurisdiction theretofore existing, as that, at the present time, the court, while considering a case under pleadings which conform to the requirements of that statute, may grant full relief, whether legal or equitable, to the plaintiff. The action in the present case was brought in conformity with the requirements of that act. The court had jurisdiction of the person of the defendant. It had before it the lien reserved by the vendor of-the land. It had full power to give complete expression to all of the legal rights of both the parties, and there was no want of jurisdiction in the premises. Upon the trial the plaintiff abandoned his claim to have a personal judgment rendered against the defendant for the full amount of his debt, but asked to be allowed a judgment for the residue, and to have a lien declared for the full amount of both debts. This was allowed, and we find no error in the judgment so awarding. The fact that tho amount of the judgment rendered upon the promissory note actually sued upon is for a less sum than that for which the foreclosure is allowed is nót a matter of which tho defendant can complain. We cannot understand how he can be prejudiced by this action of the court. As was declared by this court in the case of Clay v. Banks, 71 Ga. 374, “It is a well established rule, that when the court •of equity takes jurisdiction for one purpose it holds it for all others necessary to the final settlement of all questions involved in the litigation between the parties growing out of and connected with that subject-matter.” The foreclosure of mortgages is allowable in equity, and what could be accomplished by a court of equity prior to the act of 1887 can be as well accomplished at the present-time in a court of law.

We conclude, therefore, that no error was committed upon the trial, and the judgment is accordingly

Affirmed.