132 Ga. 280 | Ga. | 1909
(After stating the foregoing facts.)
A consideration of what has been said naturally leads to an understanding of the reason underlying decisions which have been
While the statute provides a method by which a judgment can be obtained against a debtor, a reconveyance made for the purpose of levying, and a sale made, with certain ¿dvantages and priorities in favor of the creditor pursuing such method, and while he also has the option to bring suit for the recovery of possession of the land by virtue of the title conveyed by the security deed, yet this does not prevent him, if he so chooses, from treating the instrument as an equitable mortgage and proceeding to foreclose it by equitable petition. If he elects to do so, what effect, if any, it may have on the priorities and advantages given to him where he proceeds in strict conformity to the statute, is not in question. The contention now made is as to whether he can pursue the remedy of filing an equitable petition to foreclose the instrument as an equitable mortgage, instead of pursuing the statutory plan. We think that he can do so.
Even if ordinarily such a deed could not be treated by the grantee as an equitable mortgage, and foreclosed as such, there is a special reason why he should be allowed to do so in this ease. Suit on the note is barred by the statute of limitations. He can not, therefore, recover judgment on it, file a deed, and levy upon the land in the manner pointed out by the statute. But the debt remains unpaid. If he could bring ejectment against the debtor and recover possession, that would not satisfy the debt nor would it operate as a finality as to the equities between them; but, as already stated, it has been held that, after recovery of possession, he would not hold the land as the absolute, indefeasible owner, but would be subject to an equitable accounting for rents, issues, and profits* and to have the land ultimately restored to the debtor when the debt had been discharged. Why should the creditor be compelled to recover possession and hold it subject to an equity on the part of the debtor ?■■ He may do so, but will the law confine him to that method of procedure? If there are equities which may ultimately ■require adjustment between parties, why should a court having equitable jurisdiction refuse to adjust them now, instead of compelling one of the parties to wait until, at some indefinite time, he may be called on to do so by the other, or perhaps by lapse of time, death, forgetfulness, or other reason it has become difficult
The decisions in the cases of Story v. Doris, 110 Ga. 65 (35 S. E. 314), and Duke v. Story, 116 Ga. 388 (42 S. E. 722), do not •conflict with what is here held. In the former of those two cases the debt to secure which an absolute conveyance was made became barred by the statute of limitations. The deed made no reference to it, but was absolute on its face. It was executed also, not by the debtor himself, but by one from whom he had contracted to purchase the land. The agreement that the title so conveyed should be held as a security rested entirely in parol. It was held that, after the right to sue upon the debt had become barred, equity would not undertake to foreclose “the equivalent of what might be termed an oral mortgage,” there being nothing in writing or under seal 'to bind the debtor or prove an unbarred debt. So likewise in in the case of Duke v. Story it was held that “A security deed which does not refer in any way to the debt to secure which it was given, or furnish any evidence of its existence, can not be foreclosed as an equitable mortgage, and a money judgment obtained thereon, if the obligation secured by the deed is barred by the statute of limitations. ” Neither of these decisions repudiates but both recognize the doctrine announced in Elkins v. Edwards, 8 Ga. 325, where it was held that “When a creditor takes a mortgage to secure the payment of promissory note, and the remedy on the latter is barred by the statute of limitations, his remedy, on the mortgage, is not necessarily barred — the debt being unpaid — but the
There was no error in overruling the demurrer. It contained one ox two other grounds besides that above discussed, but they are not referred to in the brief of counsel for plaintiff in error.
The court instructed the jury “that the presumption of law is against usury, and the burden would then be upon the defendant in this case, who sets up usury as a defense, to establish the existence of usury in the contract, to your satisfacti®n.” This expression was perhaps not technically accurate or apt. But when taken in connection with the entire charge, it practically informed the jury that when a deed to secure a debt was apparently regular and lawful and did not disclose any usury on its face, and the defendant sought to have it declared void by setting up that it was infected with usury, this was an affirmative plea, and the burden of establishing it would rest upon the defendant. Exception was taken to the use of the expression “the presumption of law is against usury.” It might be interesting, but would be aside from the necessities of the case, to trace the’ history of many presumptions of law, — how at first they were mere inferences of fact which the jury might draw if they saw fit; how, after having undergone a novitiate in the jury-box alone, they then.rose to the dignity
Objection is also taken to the expression “to your satisfaction,” without adding specifically that a preponderance of evidence would suffice for that purpose. No request to charge appears to have been made on that subject. It has been held that, in the absence of a request, it is not error requiring a reversal to omit to define what constitutes a preponderance of evidence or what may be considered in determining it. That point is not, of course, identical with the one now made, but is somewhat similar. Gunn v. Harris, 88 Ga. 439 (14 S. E. 593); Geo. So. & F. Ry. Co. v. Young Investment Co., 119 Ga. 513 (46 S. E. 644). In view of the whole charge, in. the absence of any such request for additional instructions, we do not think that the jury were at all likely to have been misled by this expression, or by the omission to state specifically that “in all civil cases the preponderance of testimony is considered sufficient to produce mental conviction.”
Judgment affirmed.