Biggers vs. Bird et al. force it as the parties intended? Surely there is no law against putting the legal title in pledge for a debt—against passing that kind of title into the creditor by a bona fide conveyance, to abide in him, with all the incidents of ownership, until the debt is paid? If the parties wish to do such a thing, contract to do it, and proceed to carry their purpose into effect, we are aware of no obstacle in the law. It is not only innocent but in a high degree virtuous to secure honest debts; and equally so to stand to the agreed measure of security until they are paid. It does not follow, because a mortgage is only security, that every security is only a common mortgage. For instance, when negotiable paper is delivered as collateral, the legal title passes. Land is just as much the subject of transfer as negotiable paper; the only difference is, that title to land passes by deed, and title to negotiable paper passes by indorsement; or if payable to bearer, by simple delivery. In respect to neither class of property is it essential for what purpose the transfer is made. Land, like notes, may pass as a gift, or as a sale, or as mere security. When, for any one of these objects, the owner wishes to convey the title, the law furnishes the appropriate instrumentality for the accomplishment of his design. And the law, as it should do, confines both parties to the real design contemplated. When a deed given for security has served its purpose that is, when the debt is discharged the creditor will be compelled (on all the facts being established by competent evidence,) to reconvey, should he decline to do so voluntarily. He will then be treated as holding title solely in trust for his former debtor. And it may be that even before the debt is paid, the debtor or his family, where his wife has not consented to the deed in terms of the statute, may, notwithstanding the character and general effect of the deed, be heard in assertion of the right of homestead. On that question we intimate no opinion as the case before us does not require it. Reading the deed which we are now considering, in connection with the cotemporaneous instrument, the latter might be construed as a kind of defeasance upon the former, so that Biggers vs. Bird et al. the two taken together, as they should be, might amount to a species of mortgage; yet, that would not be enough to defeat the plaintiff's recovery; for, even a common mortgage might stipulate for admitting the mortgagee into possession, on breach of the condition; and there was, in fact, such a stipulation in writing between these parties. Effect, moreover, had been given to the stipulation by virtually admitting the creditor into possession; for the defendants had recognized him as landlord and paid rent. Until they have restored to him the possession which they hold under him, they cannot be heard to dispute his title: Code, section 2283; 43 Georgia Reports, 230. With regard to the time of bringing the action, it seems, from the evidence, to have been after the defendants had failed to pay their rent in full. If rent was due and unpaid the landlord had a right to re-enter immediately: Code, section 2385. We will observe again that if the plaintiff is only a mortgagee, he is entitled to the benefit of the covenant for possession-certainly so, after having been received and treated as landlord. It may be unusual for a mortgagee in Georgia to enjoy the possession; but the Code anticipates that it may occur, and takes care to prescribe the time within which the mortgagor may redeem: section 1964. Doubtless, in redeeming, the debtor would be entitled to proper deductions from the debt on account of the profits of the land realized by the creditor while in possession. The defendants in this case might, we think, have defended successfully by pleading the facts and tendering the debt and interest: See Lackey vs. Bostwick, 54 Georgia Reports, 45. As nothing of that sort was done, the instructions to the jury gave a wrong direction to the case, and produced a verdict for the defendants, when it ought to have been for the plaintiff. It is not the purpose of this opinion to controvert the long and well established doctrine that any conveyance whatever, made by a debtor to his creditor for the sole purpose of securing a debt, is, in one sense, a mortgage; that is, the property is subject to be redeemed by payment of the debt. The maxim "Once a mortgage, always a mortgage," is used in Biggers vs. Bird et al. the books with reference to that attribute, and not with reference to the attribute of title or no title in the creditor while the debt is unpaid. Whatever is passed as security is redeemable. If the creditor takes the legal title as security, the legal title is redeemable; or if he acquires a lien, simply, (as is the case, in Georgia, under a common mortgage,) the lien is redeemable or extinguishable. The creditor's right (unless, it may be, under some peculiar statute,) does not become absolute and indefeasible upon the non-payment of the money at the time stipulated. Payment at any time will redeem. It is certainly true, that, with us, a mortgage proper passes no title; and the word mortgage is so frequently used as synonymous with lien-mere lien-that we are in danger of forgetting that such is not necessarily its meaning when the redemption element of conveyances is spoken of. Indeed, the strict idea of redemption is more adjustable to a security attended with title in the creditor, for the time being, than to one constituting a lien only. The awkwardness of using the phrase "equity of redemption," as descriptive of a right subsisting in the mortgagor under a Georgia mortgage, has not unfrequently been felt and adverted to. No such infelicity of language occurs where the legal title to property is put in pledge as a security. In that case, when the debtor does equity—that is, when he pays the debt-he redeems literally, and is reinstated, or gains the right to be reinstated, in his former ownership. It is, I think, because the word mortgage has a double meaning in our law, signifying, sometimes, that species of mere lien which is created by a common mortgage, and sometimes that implied equitable element in an actual conveyance by a debtor to a creditor which limits the creditor's right to hold only till his debt is paid, that doubt has arisen in reference to the subject of conveying the legal title as security for a debt. There has not always been due attention given to the fact, that it is not at all necessary to reduce an instrument to a mere lien in order to treat it as a security; or that to reduce it to a mortgage in the latter sense is not equivalent to reducing it to a mortgage in the former. When Buffington vs. Hilley. the right to redeem is claimed, and there is an offer to exercise it by paying the debt, the creditor must submit to have his conveyance, however absolute, treated as a mortgage; not as a mere lien, remember, but as what it really is, in good conscience, namely, a conveyance for security until the debt is paid, not a conveyance for permanent or indefinite ownership. This is all that the right of redemption requires. That right may co-exist with title in the creditor, for the time being, quite as well as with a lien. The two species of security are not alike in other respects, but each is a security, nevertheless. With these views there is, I think, no direct conflict in any case solemnly adjudged, on the precise point. The case that diverges from them most is that of Shaffer vs. Huff, 49 Georgia Reports, 589; but in it the facts were complicated so with a homestead right in the property conveyed, that the naked question was not before the court in a way to stand on its own merits. The cases which simply maintain the debtor's right to redeem, however pointedly they assert the deed to be a mortgage, are in harmony with what has been said: 36 Georgia Reports, 138; 49 Ibid., 514, 133; 52 Ibid., 480. In Lackey vs. Bostwick, cited above, very ample support is given to the theory that the deed operates as title until the debt is paid or tendered. The reason that no allusion has been made to section 1969 of the Code, in this discussion, is, that the deed before us stands without any evidence of having been made with the wife's consent. Judgment reversed. JOHN A. BUFFINGTON, plaintiff in error, vs. WILLIAM W. HILLEY, defendant in error. Except in cases of special liens for rent on crops made on the land rented, a landlord may distrain for rent without any previous demand for payment from his tenant. 55 655 57 32 65 740 75 144 55 656 71 716 GEORGE N. LESTER; GARTRELL & DUNWOODY, for plaintiff in error. W. T. & W. J. WINN, for defendant. JACKSON, Judge. This was a distress warrant for rent. It does not appear in the plaintiff's affidavit that he had ever demanded the rent, and the defendant moved to dismiss the warrant on that ground. The court dismissed it, and this is the error assigned. This is not a case of special lien on crops made on the land rented under section 1977 of the Code, but a proceeding under the general law regulating distraining for rent, found in sections 2285, 2286, 4082, 4083, and 4084 of bur Code. No demand is necessary to be made in such cases, and hence none need be sworn to. Let the judgment be reversed. WILLIAM D. STEWART, administrator, plaintiff in error, vs. (JACKSON, Judge, having been of counsel, did not preside in this case.) Indulgence by a creditor to a principal debtor, for a valuable consideration, whether with or without the knowledge of the security, discharges the latter. To make this principle applicable, the creditor must have known, at the time of the indulgence, that the defendant setting up such discharge, signed the note as security. Principal and security. Discharge. Before Judge CLARK. Sumter Superior court. December Term, 1875. |