139 Ga. 765 | Ga. | 1913
(After stating the foregoing facts.)
The argument that the instrument is a mortgage is without merit. Cases like that of Frost v. Allen, 57 Ga. 326, where the owner of property executed to a creditor an instrument to secure a debt, and the question was whether under its peculiar language it conveyed title or was a mere mortgage, are not applicable to an instrument like this. As to them see also Smith v. DeVaughn, 82 Ga. 575 (9 S. E. 425), and Pitts v. Maier, 115 Ga. 281 (41 S. E. 570).
■In Smith v. DeVaughn, supra, the instrument under consideration seems to have included in the indebtedness secured, not only the purchase-money of the mule described, but also eighty dollars of a prior indebtedness. In it the purchaser promised to pay the sum named, and added: “I hereby mortgage and convey
The distinctive difference between a mortgage and a bill of sale to secure a debt, or the retention of title by a seller to secure the purchase-money, is that “a mortgage in this State is only security for a debt, and passes no title” (Civil Code, § 3256); a bill of sale to secure a debt, with an obligation to reconvey on payment, “shall pass the title of said property to the vendee till the debt or debts which said conveyance was made to 'secure shall be fully paid” (Civil Code, § 3306); and a conditional sale, with retention of title as security, leaves the title in the seller until the purchase-money is paid. Civil Code, § 3318. Just how the same instrument can convey title and not convey title at the same time, or retain title and not retain title but be a mere lien, as to the same property and for the same debt,' is not plain. It would seem to be an effort to reconcile the irreconcilable. Relatively to dower, year’s support, and the right of other creditors to levy their common-law executions, there is a wide difference between the status of a mortgage and a conveyance of title as security, or a retention of title for that purpose. To permit a creditor to word his contract so as to call it one or the other at his plea,sure, and substantially to get the benefits of each, frightening off other creditors by means of the declaration that the title is in him, and yet reserving the right of summary foreclosure of the instrument as a mortgage, would be
If it be possible to frame an instrument so that it may be a mortgage or a reservation of title at the' option of the creditor, the instrument before us does not even do that. It seeks to hold all the benefits of a reservation of title, and yet to declare that a summary remedy may be applied to that situation when the statute has not so declared. A conveyance, or reconveyance, and levy after judgment is provided in cases where title is held as security,—omitting the provision for foreclosure of a bill of sale to secure a debt under $100. A summary foreclosure'by affidavit is provided for cases where no title is held by the creditor, but a mere lien is given. There are cases in which a party has an election of remedies, such as where a transaction partakes both of the nature of a tort and a contract, and where the party may sue for the tort, or waive the tort and sue on the contract; where the principal may ratify or repudiate the unauthorized act of his agent; where one has the option to declare a contract terminated because of a breach of a condition subsequent, or to insist upon its performance; and other instances which might be mentioned. But this is different from a contract authorizing one of the parties to apply a summary statutory remedy, authorized by law under one set of circumstances, to the enforcement of his rights under a different set of circumstances. The law declares when the statutory method of foreclosure by affidavit may be employed. Parties can not by agreement make such a proceeding applicable to a different class of cases. It is evident that an agreement attempting to give a party the right to recover land by possessory warrant, or to recover personalty by an action of ejectment,-or by a warrant to dispossess a tenant, would not be valid or confer upon the courts the right to proceed in accordance with the agreement, instead of in accordance with the statutes on those subjects. In the instant case it was agreed, that, upon filing and recording a bill of sale, the sellers of the mule should have the right “to foreclose this instrument as a mortgage upon said property, together with the other property herein mortgaged, in the same manner as mortgages upon personal property are foreclosed under the laws of this State.” “The other property
The presiding judge correctly sustained - the demurrer and dismissed the summary effort to foreclose the instrument.
Judgment affirmed.