Holliday v. Lowry Banking Co.

Lumpkin, Justice. 1. It often happens that courts are compelled to decide questions concerning which it is impossible to arrive at a. perfectly satisfactory conclusion, and this fact occasions reviewing courts, whose judgments are final, much difficulty and embarrassment. The case before us is an instance of this kind. We have devoted to it much thought and deliberation, and have anxiously endeavored to correctly determine the question whether the instrument executed and delivered by the Atlanta Pianoforte Company to the Lowry Banking Company passed to the latter a title to the property therein described. Were this question an open one, its solution would be very difficult indeed; but in our judgment, the principle of the decision made by this court in Frost v. Allen, 57 Ga. 826, constrains us to hold that the paper referred to is, in its legal effect, nothing more than a mortgage, and cannot properly be considered a conveyance of title. The instrument construed in the case cited certainly used terms which would tend more strongly to show an intention to convey title, than any which can be found in that executed by the pianoforte company; and yet, in the above mentioned case, the paper then under review was held to be only a mortgage. It is true that the provision in that paper renouncing and waiving homestead and exemption rights negatives, to some extent, any purpose to convey title, and thus strengthens the decision then made, because a conveyance of title would necessarily defeat the right to a homestead without expressly so stating, and there is no such provision in the instrument now before us. Be this as it may, however, we are still unable to hold that this instrument is a conveyance of title, after the ruling by this court [681] that the paper given by the Allens to Frost was merely a mortgage. A comparison of the two papers will, we-think, justify this conclusion. In Cameron v. Phillips, 60 Ga. 434, strongly relied upon by counsel for the plaintiffs in error, this court did not hold that the instrument then under consideration passed the title to the property, but simply that it passed “ such a title to the possession of the land in the trustee as [would] enable him to recover in ejectment to carry into full effect the purposes of the trust.” There was a power of sale in the paper, and in order to execute this power, it was necessary for the trustee to have possession of the property. Being authorized to seize and dispose of the land, he could not effectually execute the powers conferred upon him when the land was adversely occupied by another, and therefore, as against the maker of the instrument, whose possession was wrongful, and who to that extent was a mere wrongdoer, this court decided that the trustee had such title as would enable him to get possession of the property and sell it to the best advantage of all concerned. The ease last cited does not, m our judgment, go further than to rule this, and is therefore hardly in point. In Brice v. Lane, adm’r, et al., 90 Ga. 294, the instrument which this court held was not a mere mortgage, but passed title, contained neither a defeasance clause, nor a covenant to reconvey. Without further discussing the nature and purpose of the instrument now under consideration, so far as the same could be ascertained from its own terms, we simply rest our ruling in the case at bar upon the decision of this court in Frost v. Allen, supra. If this instrument was only a mortgage, and did not convey title, it was, according to rulings heretofore made by this, court, not void for usury. Hodge v. Brown, 81 Ga. 276, and other decisions to the same effect. [682] 2. By a cross-bill of exceptions, the Lowry Banking Company, trustee, assigned as erroneous so much of the decree rendered as required the value of five hundred shares of the common stock of the pianoforte company, at the time it was received by Miles, to be credited upon the principal of the bonds secured by the mortgage. There was no error in so decreeing. The trial judge being of the opinion that the paper executed by the pianoforte company was nothing more than a mortgage, and therefore not void for usury, evidently observed less care in submitting to the jury the question of usury than he doubtless otherwise would have done. In view, however, of the pleadings and the verdict rendered, we think it sufficiently clear that the jury found that Miles received, in consideration of the loan of the money, not only interest at eight per cent., but also five hundred shares of the common stock of the company of the face value of $50,000.00, which stock was worth, at thetime he received the same, $7,500.00. This undoubtedly made the transaction usurious, and the court was right in treating the stock as a payment pro tanto of the debt due by the company to Miles. Consequently there was no error in decreeing, upon the facts found, that the value of the stock at the time Miles received it should be credited upon the amount for which the bonds secured by the mortgage were given. It makes no difference that this stock may afterwards have become worthless. Miles, as against another creditor, was not entitled, by reason of this fact, to return the stock to the company and thus purge the debt of the usury with which it was originally tainted, and claim payment in full. The stock was worth to the company $7,500 at the time it was delivered to Miles. If he did not realize this value, but suffered the stock to become worthless on his hands, it is a matter about which he cannot complain. Certainly good faith requires, under the facts of this [683] case, that the principal of the debt represented by the bonds should be reduced by the amount this stock was actually worth when he received it. On the whole, the decree rendered seems precisely in accord with the law and the facts of this case, and no good reason appears for setting it aside. We therefore affirm the judgment on both bills of exceptions. Judgment affirmed.