Denton Bros. v. Shields

Lamar, J. (After stating the foregoing facts.) Under Georgia law, the word “ mortgage ” is used in a double sense. Sometimes it refers to a conveyance which creates a lien, and at others to one which passes title as security for a debt. An instrument containing a defeasance clause, describing the debt, and showing on its face that it is intended as security, is a mortgage, and passes no title. Civil Code, § 2723. A writing in the form of au absolute bill of sale, but in fact intended only as security for a debt, conveys title, but is treated as an equitable mortgage. Civil Code, § 2725; Mitchell v. Fullington, 83 Ga. 302 ; Biggers v. Bird, 55 Ga. 650. Besides these are deeds and bills of sale conveying absolute title as security, but with a bond for reconveyance, and foreclosed at law in a method provided by statute. Civil Code, § 2771. That a mortgage proper (is intended as security for a debt appears on its face. There is no necessity for offering extrinsic evidence to establish that intent. In the case of security deeds under the Civil Code, §,2771, the fact that they were intended to convey title to secure a debt may be shown in the face of the instrument, and by the production of the bond to reconvey. But where there is no bond for title, extrinsic evidence is admissible to show that what appears to be a deed, or an absolute deed or bill of sale, was intended only as a security. What is sufficient and admissible to establish this fact, and in what forum the case may be tried, are matters about which the authorities are in some conflict. The Civil Code, § 2725, clearly indicates that the deed or bill of sale absolute in form may be shown by parol to have been intended as security, except in those instances where the grantee has taken possession of the property. ' In ■ any event, a bill of sale is not void as security merely because it fails on its face to indicate that such was the purpose of the instrument. Nor is the act of December 16, 1899, limited to the foreclosure of those bills of sale in which there has been a bond to reconvey. It is broad enough to include those absolute conveyances which amount to equitable mortgages. The statute declares that “ the owner of any bill of sale to personal property to secure a debt where the principal sum does not exceed one hundred dollars, may foreclose the same in the manner as mortgages on personal property are now foreclosed; under the laws of the State of Georgia.” In the present case it was ad [1079] mitted that the bill of sale was given to secure a debt. The paper, on its face, indicated that the possession remained- with the vendor, and the case, therefore, does not .come within the provisions of the Civil Code, § 2725, prohibiting parol evidence. If there was any necessity therefor,' the plaintiff had the right, under the Civil Code, § 5122, to amend the affidavit of foreclosure, by alleging that the bill of sale had been given as security. The judge of the superior court properly sustained the certiorari. Judgment affirmed. All the Justices concur, except Brans, J., disqualified.