58 Ga. 457 | Ga. | 1877
This was an application for an injunction; the injunction was refused, and the complainant, being- dissatisfied, brings the case before us.
Isaacs borrowed three thousand dollars'from James Tinley, deceased, and, to secure the payment .thereof, Tinley took a deed from Isaacs to a boarding-house in Macon, Isaacs’ wife assenting, under the act of 1871 — -Code, §1969. James Tinley died, and his executor went' into equity and procured a decree against. Isaacs and wife, to have the property sold and the debt paid, and the balance of the money turned over
This bill alleges the foregoing facts, and says that the court of equity had no jurisdiction to decree the sale of this property — that the deed was a mortgage, in fact, and that it should have been foreclosed at law, and that there was no issuable fact pleaded on oath, and, therefore, the verdict was illegal, and that this illegal proceeding deprives complainants of their right of homestead, and defeats other and superior liens of other creditors of Isaacs. It prays for a new trial, and an injunction until the trial, which the chancellor refused. This refusal is the error assigned.
Even if the paper had been a mortgage merely, and had not operated to pass the title into Tinley, we should hold that the defendants in the first bill, the complainants here, were too late. But the statute, Code, §1969, declares that such a deed as this, though made to secure the .debt, should pass the title and put it in the vendee. We
Judgment affirmed.