Citizens Bank v. Taylor

117 S.E. 247, 155 Ga. 416, 1923 Ga. LEXIS 85

• Court: Supreme Court of Georgia
• Decided: April 11, 1923
• Docket: No. 3309
• Status: Published

Opinion

Atkinson, J.

1. A deed to land, executed to secure a debt under the provisions of the Civil Code, § 3306, will vest legal title to the land in the grantee and his assigns, subject to be defeated by payment of the debt. The grantor in such a deed retains the right of' possession and the right of redemption by payment of the debt, and consequently an equitable estate in the land which may be assigned or subjected to payment of his debts. Williams v. Foy Mfg. Co., 111 Ga. 856 (36 S. E. 927); Beckcom v. Small, 152 Ga. 149 (108 S. E. 542); Owens v. Keeney, 146 Ga. 257 (91 S. E. 65); O’Connor v. Georgia Railroad Bank, 121 Ga. 88 (48 S. E. 716); Wood v. Dozier, 142 Ga. 538 (83 S. E. 133); Guaranty Investment &c. Co. v. Athens Engineering Co., 152 Ga. 596 (100 S. E. 873).

2. A subsequent incumbrance of the same property by the grantor, whether by security deed or mortgage executed by the grantor named in the prior security deed while-he retains his equitable estate in the land, will operate upon that equitable estate. Beckcom v. Small, and Wood v. Dozier, supra.

3. The surrender and cancellation of a security deéd of the character mentioned in the first note, according to the provisions of the Civil Code, § 3309, will operate to reconvey title in the property to the grantor.

4. Where in the circumstances above mentioned a grantor in a security deed of the character mentioned in the first note subsequently executes successive mortgages and security deeds to different persons upon the same land, and the original security deed is canceled, the revesting of the legal title in the grantor will enure to the benefit of his successive assignees; and where each of the several instruments of conveyance is duly recorded, they will rank according to seniority in a contest for superiority between the subsequent grantees. Owens v. Keeney, supra.

No. 3309. April 11, 1923.

5. Under application of the foregoing principles, the trial judge, to whom the case was submitted upon an agreed statement of facts, was authorized to find that the first security deed executed by the borrower was canceled and surrendered to the grantor; that upon cancellation of that deed full legal title to the land revested in the grantor and enured to the benefit of his subsequent mortgagee and other transferees according to their seniorities; and that the mortgage was senior to the respective security deeds. Having so found, the judgment declaring the priorities in the order above indicated was not erroneous.

6. The principles above stated were recognized and applied in the case of Wood v. Dozier, supra; but on account of the difference in the facts a different result was reached. In that case the grantor in the first security deed received a bond for reconveyance from his grantee, which was not assigned to Wood, the mortgagee whose mortgage was subject to the first security deed, but , was assigned as additional security to the grantee in the second security deed, which was junior .to the mortgage, at a time when the debt secured by the first deed was still unpaid and that deed was outstanding. Under these circumstances it was held that when the debt secured by the first deed was paid, title to the land devolved on the transferee of the bond rather than on the grantor in the first security deed, and consequently there was no revesting of title in such grantor that might enure to the benefit of Wood, his subsequent mortgagee.

Judgment affirmed.

All the Justices concur, except Russell, G. J., disqualified. L. L. Moore, Hill & Gilson, and Lawton & Cunningham, for plaintiffs in error. James Humphreys, W. F. Way, and Dowling & Whelchel, contra.