473 S.E.2d 177 | Ga. Ct. App. | 1996
Lead Opinion
Appellants/plaintiffs Robert J. Minton and Kathleen Minton appeal from the order and judgment entered in a declaratory judgment action suit. In 1987, appellee/defendant Raytheon Company loaned appellants $104,000 to aid them in the purchase of a home after appellant Robert J. Minton accepted employment with a Raytheon subsidiary and relocated to Chicago. The loan was secured by a promissory note and by an instrument captioned “MORTGAGE” on a
Appellants moved for summary judgment. Appellee conceded that the statute of limitation had run on the promissory note. The trial court subsequently granted partial summary judgment to appellants as to appellee’s claim based on the promissory note but denied appellants summary judgment “as to any interest in the property held by or debt owed to [appellee/]defendant.”
Thereafter, the trial court entered an order and judgment which held inter alia that the enforcement of the promissory note, including appellee/defendant’s counterclaim thereon, is barred by the applicable statute of limitation; appellee’s claims for conversion, money had and received, and unjust enrichment are barred by the applicable statutes of limitation; and the enforcement of the mortgage instrument covering the property therein described and securing the promissory note is not barred by any applicable statute of limitation.
Appellants enumerate that the trial court erred in denying their motion for summary judgment as to enforcement of the mortgage on their property, and erred in declaring that the mortgage was not barred by the applicable statute of limitation and in declining to enter declaratory judgment in favor of appellants as to this issue. Appellee asserts that, although the promissory note cannot be enforced because of the expiration of the applicable six-year statute of limitation, as the mortgage instrument in fact is a deed to secure debt, it has 20 years (OCGA §§ 44-14-80, 44-14-83) to foreclose thereon. Held:
The trial court did not err as enumerated by appellants; although the promissory note cannot be enforced because of expiration of the applicable statute of limitation, the so-called mortgage instrument in fact is a deed to secure debt and appellee has 20 years to foreclose thereon pursuant to OCGA §§ 44-14-80, 44-14-83.
The instrument at issue provides its purpose is to “sell and con
Judgment affirmed.
Concurrence Opinion
concurring specially.
I concur in the opinion but wish to point out why we have exercised jurisdiction in this case.
The Supreme Court has exclusive jurisdiction over “Cases involving title to land.” Ga. Const. 1983, Art. VI, Sec. VI, Par. Ill (1). Assuring our own jurisdiction is always a threshold duty. Cole v. Cole, 205 Ga. App. 332 (1) (422 SE2d 230) (1992). As the Supreme Court pointed out in focusing on its own jurisdiction in Graham v. Tallent, 235 Ga. 47, 48 (218 SE2d 799) (1975), “[D]eciding cases on their merits simply because they are docketed in this court, and without regard to the division of jurisdiction as between this court and the Court of Appeals, constitutes a disservice to litigants, lawyers and appellate judges in future cases. A decision of this case on its merits would stand as a physical precedent that this court had jurisdiction, when under our Constitution it does not.”
The primary question in the case is whether the document under the spotlight is a mortgage or a deed to secure debt. The Supreme Court has fairly narrowly construed the constitutional designation of its jurisdiction over “all cases respecting title to land.” In Graham, supra at 49, it surveyed the historical development of the Court’s
I have found no discussion of this wording in the Transcripts of Meetings of the Select Committee on Constitutional Revision, State of Georgia, 1977-1981. The Constitution does retain the wording “Cases respecting titles to land” in the provision on venue and “cases respecting title to land” in the provision on jurisdiction of superior courts. Ga. Const. 1983, Art. VI, Sec. II, Par. II and Art. VI, Sec. IV, Par. I.
Applying the Supreme Court’s definition to the Mintons’ action, one must conclude that it does not involve title to land as a matter of law. It seeks a judicial declaration that the note and “mortgage” are barred by the statute of limitation and that the latter does not encumber and is not enforceable against the Mintons nor the property. It is not an action of ejectment or a statutory substitute, and it does not seek recovery of the land. Thus, this Court has jurisdiction of the case.