Calloway v. People's Bank

McCay, Judge. 1. The decisions of this court in 1 Kelly, 176; 21 Georgia, 408 ; 35 Ibid., 344; 7 Ibid,, 184, and the provision of the Code, section 1954, whilst they all are to the effect that a mortgage in this state conveys no title, no estate, yet they, none of them, go to the extent that the mortgagee has no interest in the thing mortgaged. Indeed, there is nothing -in these decisions as to the nature of a mortgage, except, perhaps, as to the remedy of the mortgagee, that is different-from the views of courts of equity in England, as to the nature of a mortgage. In Addison on Contracts, 297, it is said that “ a court of chancery regards a mortgage as a mere security for the payment of a debt. The mortgagor is considered in equity the owner of the estate. This equitable interest in the land is denominated the equity of redemption, and is, in truth, the mortgagor’s old estate unaffected in equity by the legal forfeiture, but encumbered with the lien, of the pledge. There may be a seizin of it just the same as of any other estate. It may be devised, granted, mortgaged, or en [448] tailed with remainders, and it will follow the same line of descent, as if no mortgage had been made.'” And he refers to numerous authorities to sustain this view. ‘ This court intended, doubtless, nothing more than this, when they say that a mortgage conveys no title in this state. Our blended system of law and equity, makes of a mortgage what it, in fact, is in practice, notwithstanding the formal rules of law. Neither this court, nor the Code, has said that the mortgagee has no interest. The language is, it passes no title. This was true in equity in England, and yet a mortgagee was constantly recognized as as having an interest, and an interest, too, in the land. So far as that interest was concerned, he was treated as a purchaser, and not as a general creditor, even by judgment. He could restrain the mortgagor from waste: 3 Atk., 723; Ibid., 210. And this is doubtless true under our law. If betook his mortgage .without notice of a prior title, he wras, and is treated as a purchaser: Code, sections 1956, 1957. He may prevent the removal of personal property mortgaged, and require bond even of a purchaser at public sale: Code section 1968. Indeed, we know of hardly any right which a mortgagee had in equity in England that he has not here with a mortgage drawn to meet his case. It must be noticed that our Code does not negative any limitation or right which the parties may put in a mortgage. It simply defines what a mortgage is,-and says, a mortgage, to-wit: a contract containing the terms specified, conveys no title. It does not say that the parties may not add to these terms-other terms; that they may not stipulate who shall have the possession, and how the pledge may be enforced. The truth is, nothing more was intended, as we have said, than to declare that in this state a simple mortgage was not a title on condition, as it was held in the English common law courts, but that it was what the English chancery court held it to be, a security, a pledge for the payment of money or other liability ; what indeed it,’ in fact, is even in England, since the mortgagor may always make it this by appeal to the chancery court. This section of the Code does not cover, say a deed absolute on its face, [449] with a parol condition, or even a written condition as a separate instrument. Is not that a title, so far as an innocent purchaser is concerned ? Nor does it cover any of the cases of trust deeds, with conditions of sale and payment, as assignment? for benefit of creditors, etc. Nor is there anything to prevent a power of sale. That, is more than a mortgage, and. does not come within the definition. We see nothing in the Code to limit the power of contracting as is contended for. Men have a right to do with their own as they will, and the law ought not to be construed to limit that right, unless it be very plain. “ Consensus faeit legem” is one of the most ancient and universal maxims of the law. Since it is not the object of society to limit men in the disposition they see fit to make of their own property, unless some decided public good is to be attained. This court decided in the case of Ross vs. Vason, 37 Georgia, 66, that a power of sale might be attached to a mortgage in this state, and we see no reason to reverse it. It is in accord with the rulings of the English chancery courts, where a mortgage is just what it is here: 2 Sugden on Vendors, 188; 2 Spence E., 634.; 36 Penn., 151; 2 Story Eq., 1027; Perry on Trusts, 302, etc. The idea is, we think, a fanciful one, that such a power is not coupled with an interest. The mortgagee has, as we have seen, an interest, and an interest in the thing. It is pledged to him; he is a purchaser of that interest, and a court of equity will protect him in it, and will protect it for him. We see nothing in this declaration of the Code, that a mortgage ■is only a security; that negatives the idea that a power to sell, in a mortgage, is a power coupled with an interest. The two ideas are just as consistent and harmonious as the idea of the English chancery court as to the nature of a mortgage, was with a power of sale. Indeed, it is mainly in chancery courts, all of which treat a mortgage as only a security, and uniformly recognize the property to belong to the mortgagee, that the whole ■ doctrine of powers to sell, attached to a mortgage, is expounded and announced. We are clear, therefore, that [450] this is a good power of sale, and that it may be exercised according to its terms, fairly and honestly pursued. 2. We recognize the rule that such powers are to be strictly pursued, and to be honestly and fairly exercised. It is true, too, that if no time, place or manner be pointed out in the deed, that the mode ordinarily pointed out by law for public sales ought, in our judgment, to be pursued. This is in accord with the spirit of our law as indicated by the provisions for executors and trustees: Code, sections 2328, 2567. This deed clearly contemplates a public sale. It fixes the time, it provides for the advertisement and fixes the time of publication; it leaves nothing open but the place; but in effect it also covers, that. To effect the sale, as contemplated, of these numerous lots in the.two counties in which they lie, at the courthouse of each county, would require two sales. It is plainly contemplated there shall be but one. The authority also is express, to sell in one body if it be thought best. This would be impossible if the sale were to be at the two court-houses. There is, therefore, in effect, no necessary detail left undetermined by the power itself. We are constrained to say that the advertisement, as to the day of sale, is not fixed and certain. There is an evident mistake. The day of the week and the day of the month are not coincident; which is the day intended ? As, however, the day is past and a new day must be fixed, we think that mistake is now immaterial. 3. The charge of fraud is entirely too vague and indefinite. No facts are stated. There is nothing fraudulent in what is stated. One, even an insolvent, may bona fide make a mortgage, especially a mortgage to secure a debt then contracted. The surplus in such a case is no benefit to himself. The land is subject to his creditors: Code, section 1952; 47 Georgia, 82. On the whole, we think the injunction ought not to have been granted. The charges in the bill make out no equitable ground for its use, and we reverse the judgment. Judgment reversed.