96 Ga. 322 | Ga. | 1895
In 1884 E. F. Way borrowed a sum of money from
1. The first question which arises is, whether or not Mrs. Ryan had the right to attack the deed on the ground stated. There can be no doubt that a deed infected with usury is absolutely void as to any person entitled to set up its invalidity for this reason; but a mere stranger cannot attack it on this ground. It is obviously essential to the maintenance of Mrs. Ryan’s action that the security deed should be set aside. If the deed is valid, the mortgage company’s right to sell the land under its judgment is superior to her claim of title under Way, because the mortgage company’s security deed is older than the conveyance made by Way under which Mrs. Ryan asserts title. Rut if the security deed is void, her claim of title, being based upon a deed older than the mortgage company’s judgment, would prevail.
We think Mrs. Ryan was in a position to attack the security deed as being void for usury. She is not a mere
The difference between this case and that of Ezzard v. Estes, 95 Ga. 712, is obvious. It was there held, that
2. Prima facie, one to whom letters of administration have been issued by the court of ordinary is the legal representative of the intestate to whose estate these letters apply, and creditors of the intestate are entitled to treat him as such. "While it is essential for an 'administrator to take the oath- and give the bond required of him by law, his failure to do so will not necessarily render void a judgment obtained against him in his representative capacity in an action properly brought for that purpose.
3. It was insisted that Mrs. Ryan had an adequate remedy for asserting her title to the land in controversy, by claim, and that for this reason, also, her petition was not maintainable. If it is maintainable at all, she is entitled to affirmative equitable relief in the cancellation, as a cloud upon her title, of the security deed from Way to Sherwood; and besides, the petition contains other allegations (which need not be particularly set forth) entitling her to further equitable relief, if they are duly established by evidence.
On the whole, we think the case ought not to have been dismissed, but should have been tried upon its merits. Of course, if Mrs. Ryan fails at the trial to show that the security deed executed by Way is void on account of usury, her entke case will fall to the ground. Whether or not she can establish her allegations as to usury will be developed at the trial. Judgment reversed.