168 Ga. 818 | Ga. | 1929
In 1919 Price executed to the Federal Land Bank a security deed to a tract of land owned by him. In 1921 and 1922 he executed three, more security deeds to this tract, each with power of sale, which were subsequently transferred to Pope, who now holds them. In 1925 Hammond and Reese secured a judgment against Price and entered it on the general execution docket. Price, in Pebruary, 1928, executed a quitclaim deed to Pope, who, in February, 1929, began advertising the land for sale as was required by the power of sale in the security deeds. Hammond and Reese prayed for an injunction to prevent the sale, which was granted. The exception is to that judgment.
The defendant introduced in evidence a tax execution by the tax-collector of Lincoln County, for State, county and school taxes for the year 1927 against Price, transferred to Pope on February 15, 1928, and entered on execution docket, for the sum of $127.57; and a like execution for the year 1926, for the sum of $188.40. Also receipts from the Federal Land Bank for several payments made on the amount due to that bank; also a note executed by Price, payable to Pope, dated February 9, 1923, for $3262.86 due ninety days after date, and recorded in the office of the clerk of the superior court of Lincoln County, retaining title to certain machinery and property described in the note. Defendant also introduced in evidence his sworn answer to the petition. In this answer he stated that Price cut from the lands a quantity of timber and delivered it to the defendant, who paid the value of said timber, approximately $3,000, to Federal Land Bank, thus reducing the amount of indebtedness due by Price to the bank; that the defendant, in accepting from Price a quitclaim deed, did not intend and did not in fact acquire full and complete titles to the
In Ferris v. Van Ingen, 110 Ga. 102, 111 (35 S. E. 347), the question arose as to whether there was a merger where the holder of a security deed obtained by a purchase a mortgage upon the same property. It was insisted that the mortgage became merged in the deed, the latter conveying a greater estate than the mortgage. This court said, speaking through Chief Justice Simmons : “We admit that such is the general rule of law, but in equity there are exceptions. One of these exceptions is, that the lesser security is not merged in the greater when it appears that the holder of both intended that a merger should not take place. In the case of Knowles v. Lawton, 18 Ga. 476 [63 Am. D. 200], it was said: ‘ Merger does not, in general, take place when the p’erson in whom the two estates meet intends that it shall not take place/ In that case the holder of the equity of redemption purchased the mortgage, which was in process of foreclosure, and continued the prosecution of the foreclosure suit; and this court held that this act showed that his intention was that there should be no merger of the two estates. See also 15 Am. & Eng. Enc. L. 314, and cases cited. In Knowles v. Lawton the intention was implied from the acts' of the purchaser of the mortgage; in the present case it is not necessary for the court to go that far. We think the intention that there should be no merger is a necessary deduction from the writings themselves.” And see Pills Banking Co. v. Fenn, 160 Ga. 854 (129 S. E. 105). Among well-considered cases in other jurisdictions, reference is made to Beecher v. Thompson, 120 Wash. 520 (207 Pac. 1056, 29 A. L. R. 699). The first headnote in this case is: “A mere assignment by a chattel mortgagor of his interest in the mortgaged property to the mortgagee will not, in the absence of anything to indicate an intention to do so, merge the mortgage interest in the legal title so as to permit enforcement of a lien for repairs which is subordinate to the mortgage.” In the opinion the following is quoted from 11 C. J. 689: “As was said in Mc-Creary v. Coggeshall, 74 S. C. 42, 7 L. R. A. (N. S.) 433, 53 S. E. 978, 7 Ann. Cas. 693: ‘'The view generally held is that merger is not favored in the courts of law or equity; at least, it will not take place if opposed to the intention of the parties either actually proved or implied from the fact that merger would be
In this case Price remained in occupation of the land, agreeing to pay rent to Pope, but that can not affect the principles involved or the rulings made under the facts of this case. It is a matter to be considered, but, in view of all the evidence, can not change the result. “If . . the purchaser at such attempted sale, at the time of the transfer, held a valid lien by mortgage on the property he sought to purchase, and neither before nor after such sale gave up, reliquished, or canceled his lien, or agreed or intended to do so, there was no merger of the lien with the title sought to be conveyed, but the same remained intact, and capable of enforcement. Aliter, if he did, as a consequence of his purchase, cancel or relinquish his lien, or if he intended to do so. Woodside v. Lippold, 113 Ga. 877 [39 S. E. 400, 84 Am. St. R. 267], and cases cited.” Coleman v. Price, 115 Ga. 510 (4) (42 S. E. 5). '“At law it is declared to be the inflexible rule that a merger always takes place when a greater and a less estate coincide and meet in the same person in one and the same right without any intermediate estate. But the doctrine of legal merger is now practically extinct both in England and the United States, equitable principles being generally applied by the courts of both countries. Since a court of equity is not bound by the legal rule of merger, it will prevent or permit a merger of estates according to the intent of the parties, either actually proved or implied from the fact that the merger would be against the interest of the party in whom the several estates or interests have united; and it has been held that parol evidence is admissible to establish the facts and circumstances attending a transfer, with a view to establishing and giving effect to the intention of the parties in respect to a merger. When the circumstances under which merger ordinarily takes plabe are shown, the burden rests upon him who alleges that there was no merger to prove a contrary intention,* or to prove facts and circumstances from which such intention will be presumed.” 10 R. C. L. 666, § 37.
The remaining headnote does not require elaboration.
Judgment reversed.