55 Ga. 208 | Ga. | 1875
Henry D. Shehee, in 1854, sold a tract of land in the county of Decatur to John P. Gaulden, and put him in possession thereof, taking a mortgage to secure the payment of the purchase money. John P. Gaulden sold this land in 1863 to Daniel Fry, who went into immediate possession, and held it
But a mortgagee has no title to land in Georgia. The title never passes out of the mortgagor into him. It remains in the mortgagor, and the mortgagee has a mere lien or security on the laud for his debt. He has no right of entry. He cannot maintain ejectment, and as he cannot eject the person in possession of the land, it is difficult to see how that possession is adverse to him, and therefore how any prescriptive right can be acquired against him. When the mortgagor sells the land, he sells all the title he has. That title is the fee, but the fee encumbered by a security for debt, a lien or charge on the land for the purchase money in the case at bar, called a mortgage. The purchaser gets that title, but he gets it exactly as the feoffor had it — own onere, encumbered by the mortgage. It is true, that this court, in the case of Stokes, administrator, vs. Maxwell et al., 53 Georgia Reports, 657, held that the purchaser from a vendor other than the mortgagor and in possession of land seven years, acquired a prescriptive title against the mortgagee; but that case rests upon the principle that
3d. That two witnesses were absent, who lived in the county when subpoenaed, one of whom lie knew was trying to rent land in the county the year of the trial, and, that so far as he. knew, they were still in the county, and the evidence was material. We think the court erred in not continuing the case on this ground.
So as to the twelfth ground. We think that the lien of a mortgage is good for twenty years, and that it may be foreclosed any time Avithin that period, and that the court charged correctly.
As to the thirteenth ground, we think that if the mortgage execution sufficiently identifies the mortgage as its foundation the lien does relate back to the date of the mortgage, and Ave see no error in the charge to that effect.
The fourteenth ground, Ave think also untenable. The court charged to the effect that land held by perfect title from the state down or by prescription, may be subject to a mortgage, if the mortgage was made by the vendor under whom the tenant claimed title. We think the charge legal.
We see no error in the charge complained of in the fifteenth ground, “that actual notice of a mortgage lien created by the maker of the color of title, under which the claimant bases his prescription, will prevent any number of years’ possession defeating said lien.” We understand the court to mean within the twenty years that the mortgage is alive.
The seventeenth ground relates to the verdict being against the charge, and has been already alluded to in the former part of this opinion. We see no error in the verdict. The same may be said of the eighteenth and nineteeth grounds. They relate to the law on the main question first decided, and need not be repeated.
Judgment affirmed.