140 Ga. 603 | Ga. | 1913
(After stating the foregoing facts.)
1. The mortgage note sued on in this case was payable to 0. E. Setze or order. It was therefore negotiable. The petition alleges that it was transferred and assigned to the plaintiff, which brought suit against the maker to enforce it. There is no formal transfer or assignment of the note and mortgage in writing, and the question is whether the simple indorsement of the name of the payee in the note on the back thereof operates to transfer not only the note but the lien created by the mortgage to the plaintiff, which claims to be the holder for value and sues as such. A promissory note is negotiable by indorsement of 'the payee or holder. Civil Code, § 4273. Civil Code § 4276, declares: “The transfer of notes secured by a mortgage or otherwise conveys to the transferee the benefit of the security.” See, to the same effect, Roberts v. Mansfield,, 32 Ga. 228; Murray v. Jones, 50 Ga. 109; Berrie v. Smith, 97 Ga. 784, 785 (25 S. E. 757). Civil Code § 3345 is as follows: “All transfers and assignments of rent notes, mortgage notes, and other such evidences of indebtedness, secured either by contract lien or out of which a lien springs by operation of law, shall be sufficiently technical and valid where such transfer or assignment plainly seeks to pass the title to any of such papers in writing from one person to another.” The act of 1899 (Acts 1899, p. 90), embodied in the Civil Code, §§ 3345-3347, was remedial in its nature, and, as expressed in the caption, was' “to provide for the more full and complete transfer and assignment of rent notes, mortgage notes, . . so that upon a- simple transfer for value of such rent note, mortgage note, and other .such evidences of indebtedness, the lien connected therewith is carried and follows as a necessary incident of such transfer, so as to allow such transferee or assignee of the same, without more, to foreclose and enforce the same in his own name.” The purpose of this act was, therefore, not to lessen the power of .assignment, but to broaden it, so as to do away with, as much as- possible, the formality of transfers of
2. One of the prayers of the petition is that the “mortgage may be declared a lien upon said land for the principal, including interest and attorney’s fees, as hereinbefore set out, and costs, and that said mortgage be foreclosed and the equity of redemption therein forever barred, and that said land be sold to pay this debt, after paying the debt, if any, due the Society of the African Mission of Baltimore City.” The petition as originally brought alleged that the Society of the African Mission of Baltimore City had a first mortgage on the property described in the petition, for $2,200, which matured October 16th, 1908, and was extended for five years from the date of maturity. By amendment to the petition it was alleged that there is no such corporation as the Society of the 'African Mission of Baltimore City, as set out in defendant’s answer, and that said defendant had no transactions with said society. We think the special demurrer to this portion of the petition should have been sustained, and to that extent the judgment of the court below is reversed. That portion of the petition referred to in this division of the opinion should have been stricken. No necessity is shown in the petition for such a decree as prayed for. A general judgment is prayed against the defendant, and the insolvency of the defendant is not alleged. The Society of the African Mission of Baltimore City, whose first mortgage would be affected by such a decree, is not a party to this suit. The plaintiff does by amendment allege that there is no such corporation, and that the defendant had no transaction with the corporation. But the plaintiff will not be heard to deny the validity of the first mortgage, when the note under which it sued in terms expressly states that it is a second mortgage on the property, the first-being given to the “Society of African Mission of Baltimore City.” Jenkins v. Southern Ry. Co., 109 Ga. 35 (34 S. E. 355); Long v. Bullard, 59 Ga. 355 (3). No reason is shown why the society above named had not a
3. The note on which suit was brought contained a provision for the payment of. 10 per cent, attorney’s fees on principal and interest in case of collection by suit or through an attorney. The petition alleged that notice of intention to bring suit and collect attorney’s fees had been given to the defendant in writing, stating the term of court to which suit would be brought, 10 days prior to the filing thereof. A special demurrer was filed, on the ground that a copy of the notice should have been attached to the petition-This was unnecessary. The suit was not brought on the notice, but on the note. The statute requires notice in order to make this provision of the note enforceable. It was necessary to allege the giving of such notice, but the allegations of the petition were sufficient, and it was not necessary to attach a copy of the notice which had been given.
As the plaintiff in error has secured a material modification of the judgment of the court below, she is entitled to the costs of .bringing the case to the Supreme Court.
Judgment affirmed in part and reversed in part.