182 Ga. 25 | Ga. | 1936
E. L. Paw, as executor of an estate, brought suit against Nettie Kirkpatrick and Anna Kirkpatrick to recover possession of land to which the plaintifE claimed title. The plaintiff’s abstract of title showed that in March, 1906, about twenty-eight years before the bringing of the suit, the defendants and another person executed and delivered to the plaintiff a warranty deed conveying the land sued for. The defendants filed their answer, and a demurrer on the ground that the deed showed on its face that it was given as security for a promissory note, and the note or a copy was not attached to the petition, and there was no allegation that the note had not been paid. The court overruled the demurrer, and on the trial of the case directed a verdict for the plaintiff. The defendants excepted and brought the case to this Court, where the judgment overruling the demurrer was reversed. Kirkpatrick v. Faw, 180 Ga. 764 (180 S. E. 737). Before that judgment was made the judgment of the superior court, the plaintiff, on July 13, 1935, filed an amendment alleging that the deed relied on as showing the plaintiff’s title was given by the defendants and their sister, now deceased, to secure a loan, and that though long past due it had never been paid. The plaintiff attached a copy of the note dated March 8, 1906. The defendants objected to this amendment, and demurred to the petition as amended, on the grounds that the note, which was the basis of the alleged indebtedness to secure which the deed was executed, was barred by the statute of limitations, having been executed more than twenty years before the petition was filed; and that for a similar reason the security deed was barred.- This demurrer the court overruled, and 'the defendants excepted.
When this case was previously before this court, it was held that the superior court should have sustained the general demurrer, holding: “The abstract of title attached to the petition in the
This court in several cases has shown the distinction between a proceeding to foreclose in equity a deed given as security for a debt and a proceeding to recover possession of land by virtue of a deed given to secure a debt, but which also conveys the title to the land. In Doris v. Story, 122 Ga. 611 (50 S. E. 348), it was said: “Where A contracted with B for the purchase of a lot of land and paid the first instalment, and C, at A’s request, paid the balance of the purchase-money, and B, by A’s direction, made 0 an absolute fee-simple deed to the land, it being agreed between C and A that C should hold the title as security for the payment by A to C of the sum paid by C, C got a good title subject to be divested only by the payment of the debt thus secured. . . In the trial of such a suit the fact that C’s debt against A for the balance of the purchase-money was barred by the statute of limitations would make no difference, as the action was not predicated upon the debt, but upon the right to recover the land under C’s title. Nor was the action by the heirs of C a stale demand, as there is no law in this State which prevents the true owner of land who has the legal title from bringing a suit for its recovery at any time.” Again it was said: “When Doris paid the last instalments on the land to the City Council of Augusta and it made him the fee-simple title thereto, he became the owner of the land and had the full and legal title. The agreement between him and Story made the deed in the nature of a security deed. Doris’s title was good against the world and Story, but was subject to be divested, under the arrangement between them, by Story’s paying.the debt which he owed Doris, and thereby redeeming the land. . . As long as the legal title remains in Doris, or his heirs, and there is no better title in the persons in possession, the holder of the legal title is entitled to recover the possession of the land; and that is true whether the consideration of the deed was to secure a debt or to secure the purchase-money for the land. Nor was the suit
In Blalock v. Thomas, 176 Ga. 407 (168 S. E. 13), it was held that an action like the instant case is not predicated on the debt, but on the legal title to the land and on the right of possession of the persons holding that title. Several other cases might be cited where the- rulings are to the same effect. The statute of limitations is not applicable to actions to recover land, and there are no facts in this case showing title by prescription or otherwise in the defendants. Nothing in what we have here ruled is contrary to what was decided in Pusser v. Thompson, 132 Ga. 280 (64 S. E. 75, 22 L. R. A. (N. S.) 571). That case was a proceeding to foreclose the security as an equitable mortgage, and in the cases which we have cited above this action is distinguished from cases like Pusser v. Thompson, supra.
Judgment affirmed.