Bleckley, Judge.
1. The deed in question was made in pursuance of the statute (Code, section 1969) to secure a debt. By the express declaration of the statute it is not a mortgage, but an absolute conveyance, passing title.- The necessary legal consequence is, that a recovery can be had upon it in ejectment, or in statutory complaint for land, so long as the title remains in the creditor and the debt is unpaid, especially, if the debt, as in this case, is overdue. That the next section of the Code gives a remedy for collecting the money by proceeding to judgment, filing a deed, levying upon the land and selling it, does not negative the former remedy. The creditor may either assert his title or part with it to the debtor, at his option. Pie may possess himself of the land and hold it till he is satisfied, or he may enforce satisfaction - in the manner pointed out by section 1970. In this respect, his position is like that of an ordinary vendor of land who retains the title as security, giving a bond to convey on payment -of the purchase money.
2. But if the conveyance to the creditor be infected with usury, the question is materially altered. In that event, the deed is void as to title, and the land cannot be recovered upon it from the grantor: Code of 1868, sec. 2025; Sugart vs. Mays, 54th Georgia Reports, 554. It may be that a deed not bargained for as a part of the usurious contract, nor then contemplated by the parties, but afterwards executed, in good faith, in final payment of the debt, even without purging the latter of usury, would not be void. That need not now be decided. But where the deed is for securing an usurious debt, whether the conveyance be stipulated for at the creation of the debt or not till afterwards, it cannot operate as title, for it becomes a'part of an executory scheme for collecting usury. It was not the purpose of the acts embodied in section 1969 of the Code to enable parties to pass absolute title as security for usurious debts. This new legislation did not repeal or [415]*415modify the prior law on the subject of usury. A creditor, whose debt'is free from usury, may have the high security provided for by section 1969, but no such mighty lever was intended to be put into any creditor’s hands to aid in coercing payment of a tainted debt. As an equitable mortgage the deed may possibly have effect, so as to secure principal and lawful interest, but as title it can have no effect at all, any' more than it would have had .if executed under the prior law and with a like taint. With usury in the-debt, a deed made under section 1969 may stand no lower than an absolute deed made under the general law to secure a similar debt, but it can stand no higher.
3. It was not insisted before us that the plea of usury in the deed was unnecessary because the same matter could be given in evidence under the general issue, but that the pjea did not set out the usury with the amplification and minuteness required by section 3419 of the Code of 1868. We think this ground of objection untenable, for the section referred to applies to pleas in a different class of actions, those for money, where precise amounts are material. Here the bare fact of usury was sufficient to defeat the deed as title. Taking all the special pleas together as one answer, the defense of usury was sufficiently set out to withstand a general demurrer, and it was error to strike them to the extent of that defense.
4. But the other defenses embraced in the special pleas were not good, as pleaded. In pleading fraud and duress, specific facts must be stated with due certainty, and where the execution of a deed is the result, the facts must be such as will avoid the deed. Ignorance of the defendant and his wife, as to the character and contents of the deed, is not properly accounted for. The deed was before them; why did they not examine it or cause it to be examined ? Several of the matters complained of in the pleas are mere breaches of contract on the part of the creditor. What damage resulted from them is not alleged, nor is it shown why any such damage cannot be compensated without divesting the title conveyed by the deed. Are these matters of alleged contract to be en-[416]*416grafted upon the conveyance as conditions subsequent? We sée no solid merit in any of the stricken defenses except that' of usury; and as to it alone, the judgment is reversed and a new trial granted.
Judgment reversed.
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