Burnside v. Terry

Warner, Chief Justice. This was an action of ejectment, brought by the plaintiff against the defendants to recover the possession of lot of land number forty, in the tenth district of Hall county. On the trial of the case, the jury found a verdict for the plaintiff. A motion was made for a new trial, on the several grounds specified in the record. The Court granted the new trial, whereupon the plaintiff excepted. The plaintiff claimed a title 628 to the land, under a deed made by the defendants, on the 30th day of April, 1869, to him, as set forth in the record ; and one of the questions made on the motion for a new trial was, whether this deed, according to its legal effect, was a conditional deed, conveying a title to the land, or a mortgage. A mortgage in this State is only a security for a debt, and passes no title. No particular form is necessary to constitute a mortgage, but it must clearly indicate the creation of a lien, specify the debt to secure which it is given, and the property upon which it is to take effect: Code, 1944, 1945. A contract may be absolute or conditional. The classification of any contract must depend upon a rational interpretation of the intention of the parties : Code, 2679. It is recited in the deed, that Burnside, the plaintiff, held in his own right judgments against Field, one of the defendants, amounting to the sum of $3,000, and that Field had obtained the benefit of the homestead law upon his real property, to which Burnside filed no objections, upon the following agreement: that, if Field did not pay the money due on the judgments on or before the 1st day of January, 1871} then the lot of land (number forty, in the tenth district, valued at $1,000) is to be the right and property of said Burnside, his heirs and assigns forever, in fee simple, and the said judgments to be considered paid off and satisfied. In consideration of this agreement, Field and his wife, Levada, conveyed the lot of land to Burnside, in fee simple, and declared that it was a conditional deed, and not a mortgage, and becomes absolute upon the non-payment of the sum o money due on said judgments at the time specified, and that Burnside has the right to enter and take possession of said lot of land at the expiration of the time. The agreement between the parties was, that the judgments held by Burnside, amounting to $3,000, should be paid off and discharged by conveying the lot of land worth $1,000; and if the $3,000 was not paid by the 1st of January, 1871, the land belonged to Burnside, and the debt of $3,000 was paid off and 629 extinguished. Such was the contract and intention of the parties, as manifested by the deed and the recitals therein. The $3,000 was not paid by Field by the time stipulated, and the result was, by the terms of the deed, that the land became the ¡property of Burnside; and Fields’ debt, due to Burnside, pf $3,000, was paid off and extinguished by the conveyance of the lot of land worth $1,000. In our judgment, this was a deed convoying the land upon a condition subsequent, and not a mortgage, according to the declared intention of the parties: Code, 2268-2273. Whether this agreement between Field and Burnside operated as a fraud upon the other creditors of Field, we express no opinion, as they nor the character of their claims are not now before us. Another ground of error assigned is, that the deed of Field and his wife to Burnside for the lot of land in controversy was approved by W. A. Burnside, the Ordinary, who was the brother of James W. Burnside, the grantee in the deed, that he was incompetent to do so on account of his relationship to one of the parties, and that Mrs. Field was not present at the time of such approval by the Ordinary. The 193d section of the Code declares, “that no Judge, or Justices of any Court, no Ordinary, Justice of the Peace, nor presiding officer of any inferior judicature, or commission, can sit in any cause or proceeding, in which he is pecuniarily interested, or related to either party within the fourth degree of consanguinity or affinity.” The property set apart under the Homestead Act is declared to be for the use of the wife or widow and children, during her life or widowhood, and at her death or marriage to be equally divided between the children of her former husband then living : see twelfth section, Act of 1868. The wife and children are the principal beneficiaries under the Homestead Act. The homestead property, set apart as such, cannot be alienated by the husband, but may be sold by him and his wife, jointly, with the approval of the Ordinary. The approval of the Ordinary is required for the protection of the wife and children ; and 630 this is not only a proceeding before the Ordinary, but is an important function, which he is required to perform, in the exercise of his judgment as a judicial officer, and he ought to be clearly satisfied in all cases that the wife’s consent is freely and voluntarily given, and that the sale will be for the benefit of the wife and children. Under tbe provisions of our Code, the wife cannot bind her separate estate by a contract to pay her husbands debts, nor by a sale of her separate estate to a creditor of her husband, in extinguishment of his debts: Code, 1773. The same reasons would seem to be applicable to the sale of the homestead in extinguishment of the husband’s debts. In this case, the wife joined with the husband in selling apart of the homestead in extinguishment of the judgment debts of her husband, and if the homestead is to be held good as against the preexisting debts of the husband, the Ordinary should not have approved the sale of the land for that purpose. The Ordinary who approved the sale was the brother of the party to whom the sale was made, as appears from the evidence in the record, the wife not being present at the time of the approval and consenting thereto. In our judgment, the deed was invalid because it was approved by the Ordinary who was related to one of the parties to it, within the degree of consanguinity prohibited by the Code, and that the new trial should have been granted on that ground. Let the judgment of the Court below, granting a new trial, be affirmed.