Carter v. Gunn

Warner, Chief Justice. This was an action brought by the plaintiff against the defendants in the statutory form, to recover the possession of certain described tracts of land. On the trial of the [652] case the jury found a verdict for the plaintiff. A motion was made. for a new trial on the grounds therein stated, which was overruled, and the defendants excepted. The plaintiff offered the following instruments in writing as evidence of title to the land sued for, which had been duly probated and recorded: $767.74. “Cuthbert, Ga., February 1st, 1880. “ On November 1st after date, we promise to pay to Jno. McK. Gunn, or bearer, seven hundred and sixty-seven dollars and-seventy-four cents, value received, with interest at the rate of twelve per cent, from maturity until paid. “I waive all statutory exemptions that now exist in me, my wife, children or friends, to prevent the payment of this note. his Jno. A. M Carter, mark. “Attest: Richard V. Carter.” H. H. Cobb, W. E. Landrum. “Georgia — Randolph County. “This deed witnesseth, that to secure unto John McK. Gunn seven hundred and sixty-seven dollars and seventy-four cents, which I justly owe him, I have hereby sold and conveyed unto him and his heirs and assigns, at the stipulated price of seven hundred and sixty-seven dollars and seventy-four cents, lots of land numbers (68) sixty-eight and (84) eighty-four, containing each, say two hundred and two acres, more or less, making amount of land sold to said Gunn, say four hundred and four acres; both of said lots of land are contained in the sixth district, said county, said state, and numbered as above-mentioned, with all the members and appurtenances thereunto belonging. To have and to hold unto him and his heirs forever. The title to which property I warrant and will forever defend. Witness my hand and seal this 26th day of February, 1875. Signed, sealed and delivered before his •' H. H. Cobb, Jno. A. M Carter, W. E. Landrum. mark. Richard V. Carter.” $400.00. “ Cuthbert, Ga., February 4th, 1878. “ On November 1st after date, I promise to pay to the order of John McK. Gunn, four hundred dollars, with interest at ten per cent, after maturity, Jno. A. Carter, Richard Y. Carter.” [653] “ Georgia — Randolph County. “This deed witnesseth, that to secure unto John McK. Gunn four hundred dollars, which I justly owe him, I have hereby sold and conveyed unto him and his heirs and assigns at the stipulated price of four hundred dollars, three mules, as follows: Aleck, a black horse mule; Julia, a bay mare mule, and'Beck, a mouse-colored mare mule; also the following lot of land, number (85) eighty-five, in the sixth district of Randolph county, state of Georgia; also my entire interest in my. cotton crop that I am now preparing to make during the present year, with all the rights, members and appurtenances thereunto belonging. To have and .to hold unto him and his heirs forever; the title to which property I warrant and will forever defend. “ Witness my hand and seal, this 4th day of February, 1878. Signed, sealed and delivered before Jno. A. Carter, [seal.] R. B. Phillips, R. V. Carter, [seal.]” B. F. Cobb. The main controlling question in this case is whether the foregoing written instruments are to be construed as deeds conveying the title to the land therein described, from the grantors to the grantee, or whether the same shall be held to be mortgages only. Prior to the passage of the act of 1871, these instruments, according to the rulings of this court, would have been considered mortgages only. Since the passage of that act such instruments are to be construed as deeds vesting the title to the land conveyed in the grantee as security for the debts until the same are-paid, and not as mortgages, the grantors having the right to have the land reconveyed to them on the payment of the debts for which the deeds were given to secure. (See acts 1871, page 44.) The question raised by the plaintiffs in error as to the legal effect of the two instruments set forth in the record, is not now an open question in this court. See 54 Ga., 45; 55 Ib., 383, 650 and 691; 60 Ib., 588, and 61 Ib., 398. .Let the judgment of the court below be affirmed.