100 Ga. 407 | Ga. | 1897
On May 10th, 1894, H. Q. Ward executed to Iverson Lord & Oo. his certain promissory note for $1,600.00. At the same time Ward executed to- Lord an instrument reciting that, in consideration of $1,600.00 to him paid by Iverson Lord & Oo., he granted, bargained, sold and confirmed unto them, their heirs and assigns, certain personalty fully set out and described in the instrument. This instrument contained other provisions and stipulations which will he hereafter referred to. On November 2d, 1894, Ward died, and Mrs. Ward and her children had duly set apart for them out of the property of the deceased a year’s support, consisting of all the furniture and $560.00 in money to be realized from the estate of said deceased. The setting apart of this year’s support was confirmed by the judgment of the court of ordinary on January 8th, 1895. Iverson Lord, as a member of the firm of Iverson Lord & Co., who claimed to be the largest creditors, qualified as administrator of Ward’s estate, and as such took possession of the property of the deceased, which it seems consisted of certain furniture embraced and
The instrument from Ward to Lord & Co. being, of course, older than the judgment for year’s support in favor of Mrs. Ward and her children, would prevail as against the latter, provided the former was in law an absolute bill of sale and conveyance of title to the personalty described;
At common law the legal estate vested in the mortgagee .and was forfeited by default. The title passed to the mortgagee by the deed. The mortgagee had something more than a mere lien; he had a transfer of the property itself and a legal estate in it, giving him a standing at law as well as in equity. 1 Jones on Mortgages (5th ed.), §11. Ti. is the conveyance of an estate by way of pledge for the security of debt, and to become void on payment of it. The legal ownership is vested in the creditor. 4 Kent Com. (12th ed.) 138, bottom. At law a tender of payment, in order to defeat the estate of the mortgagee, had to be made at or before the "law day,” as the day for payment is called; and if not so made, the mortgagee could bring ejectment and obtain possession of the land. 15 American & Eng. Ency. Law, p. 730. The common law courts relentlessly adhered to the terms of the instrument, by which the legal estate was vested in the mortgagee, but subject to become absolute upon default. Goodtitle v. Notitle, 11 Moore, 491; Doe v. Clifton, 4 Ad. & E. 809. .The •courts of equity, however, established the right of redemp
In view of these authorities, how stands the case at bar? It appears from the record that Ward executed to Lord & Co. a promissory note for $1,600.00, in which he expressly waived and renounced the homestead exemption, signed the-same under seal, and immediately following this note and on the same sheet of paper appears the instrument which this' court is now asked to construe. In this instrument it is recited that in consideration of $1,600.00 to him in hand, paid by Iverson Lord & Go., Ward has granted, bargained,.
Let the judgment of the court below be reversed.