57 Ga. 326 | Ga. | 1876
This was a claim case. It appears from the record that Wilson Allen and Amanda Allen, on the 19th day of February, 1875, executed and delivered to Frost the annexed instrument in writing, which was duly recorded within three-months from the date thereof. Frost proceeded to foreclose the paper writing as a mortgage, a Ji. fa. was issued on the judgment of foreclosure and levied on the property, which was claimed by Amanda Allen. When the claim case was called for trial, the claimant made a motion to dismiss the plaintiff’s levy on the mortgage ji. fa., on the ground that the paper writing on which the plaintiff’s proceedings were based was not a mortgage. The court sustained the motion and dismissed the levy, whereupon the plaintiff excepted.
The following is the paper writing which the plaintiff foreclosed as a mortgage, to-wit:
“GEOBGIA — Troup County.
“Be it known, that we, Wilson Allen and Amanda Allen, both of said county, are justly indebted to F. A. Frost in the sum of $684 40, which is evidenced by promissory note bearing even date with these presents. Now, for and in consideration of said sum of $684 40 furnished us the present year by said F. A. Frost in the way of provisions, we hereby sell, transfer and assign to said Frost the following described property, to-wit: One black horse, name Coley; one gray mare, name Kit; one sorrel horse, named Ball; one bay mare, known as the Sea Mare; one two year old mule; one two year old filly; one two year old horse colt; two one year old horse colts ; four cows, three heifers, and one yoke oxen; six head of stock cattle and twenty head of sheep; one Studebaker wagon; one grain reaper and fixtures; one gin and condenser. And it is our intention, by this contract, to vest
Was the foregoing recited instrument a mortgage, and was the plaintiff at liberty to treat it as such and foreclose it as a mortgage under the provisions of our • statute ? A mortgage in this state is only a security for a debt, and passes no title. It may embrace all property in possession, or to which the mortgagor has the right of possession at the time. 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 upon which it is to take effect: Code, sections 1954,1955. The instrument in question is of an anomalous character, and it is somewhat difficult to classify it according to any well settled legal definition. In our judgment, it has more of the elements of a mortgagé than of an absolute conveyance of the property therein named. It was evidently intended to be a security for the payment of the debt due to Frost, and if that debt was paid by the 1st day of November, 1875, Frost was to reconvey the property by a quit-claim title. The title to the property cannot fairly be said to have been vested in Frost
Let the judgment of the court below be reversed.