Scott v. Hughes

124 Ga. 1000 | Ga. | 1906

Cobb, P. J.

(After stating the foregoing facts.) It is often a question difficult of solution as to whether a paper executed for the purpose of securing the payment of a debt passes title.to the grantee, or is a mere mortgage. In Burkhalter v. Planters Bank, 100 Ga. 432, Mr. Justice Atkinson said: “The test then whether an instrument he a deed or mortgage is necessarily whether the interest acquired by the holder of an instrument is such an interest as can be extinguished by the voluntary act of the debtor alone. If it can be, the instrument is defeasible, and does not pass . .' an absolute title.” The ordinary mortgage is usually in the form of a conveyance of an absolute title, but with a defeasance clause added. That the defeasance clause is not in the usual form or usual place does not make it any the less a defeasance clause. It is distinctly provided in the paper in question that if the amount which is specified as the consideration of the deed is paid by a given date, the instrument “shall be void, otherwise in full force.” The language of this deed -as to what will operate to defeat it is almost in terms the defeasance clause usually found in a technical mortgage. The paper was a mortgage, and not a deed. See Ward v. Lord, 100 Ga. 407; Lubroline Oil Co. v. Athens Bank, 104 Ga. 380.

The paper relied upon by the plaintiff to obtain the special lien not being a deed, the city court had no jurisdiction to enter a judgment to that effect. Treating it as a mortgage, that court was without jurisdiction. A city court has no jurisdiction to foreclose a mortgage on realty. Such an instrument must be foreclosed in the superior court, either by following the statutory procedure, or by appealing to the equity powers of that court. The verdict did not purport to find in favor of a specific lien. If the pleadings had disclosed a case in which the court had jurisdiction to enter a special lien in favor of the plaintiff, a general finding of the character now involved might probably have authorized the-court to enter a judgment in accordance with the prayers of the petition. But certainly such a general finding would not authorize a judgment to be entered up which it was apparent from the face of the pleadings the court was without jurisdiction to render. It is true that an attorney of record may enter up a judgment on a. verdict, but his right to enter up a judgment which will be binding upon the defendant, and which {he court will be bound to recognize, is subject to two limitations: first, the judgment must be in accordance with the verdict and pleadings; and second, the court must have jurisdiction to enter the judgment which the pleadings call for. If the judgment which the attorney prepared had been submitted to the judge before it was handed to the clerk, no one would for a moment question the right of the judge to strike that portion of the judgment which purported to set up a special lien upon the land. This being true, when the judge proceeded to examine the minutes, preparatory to approving the same as the truth of the proceedings in his court, we see no good reason why in his order of approval he could not eliminate from the minutes that portion of the judgment which was improperly there, for the reason that the court was without jurisdiction to enter such a judgment. The power of a judge of a court of record to correct the minutes of his court is very broad, even in those cases where he is dealing with matters within his jurisdiction. Civil Code, §4047, par. 6. Doves v. Barker, 1 Ga. 559; Barefield v. Bryan, 8 Ga. 463. If a judge has power to correct the minutes of his court in reference to matters within his jurisdiction, certainly he has power during the term to expunge from his minutes that which purports to be a judgment which his court is without jurisdiction to render.

Judgment affirmed.

All the Justices concur.