[200]*200
By the Court.
Lumpkin J.
delivering the opinion.
When this case was up before, (23 Ga. Rep. 235,) we held, that the one year’s support allowed the family of testator or intestate, out of the estate of the deceased, was paramount to the mortgage lien of the loan association, or any other debt due, or obligation, which the decedent could contract. Such is the express language of the law. Cobb, 296, 298. And in this opinion all the Judges concurred. We do not see that the present case differs from that. It is true that it is alleged that it was cotemporaneously agreed between all the parties, that concurrently with the execution of the deed from Elfe to Cole, that Cole should substitute his mortgage to the loan association, in lieu of Elfe’s, which has been done. And the attempt is made to analogize this case to that of Scott, Carhart & Co., against Warren & Spicer, (21 Ga. Rep. 408,) in which it was held, that where A. takes a conveyance in fee, and at the same time, under an agreement to that effect, mortgages the land back to the grantor,that the transitory seizin of A. for an instant, when the same act that give him the estate conveyed it out of him, did not so vest the title in A., as to subject the land to an existing judgment lien, to the exclusion of the mortgage lien.
But the analogy between the two cases fails entirely in this. In Carhart’s case, the vendor and mortgagee were the same persons. The title to the land was in the mortgagee originally. Before the transfers it was his property. But this lot never belonged to the loan association, but was bought by Elfe, of Freeman & Robert, and by Freeman conveyed to Cole. Elfe might have stipulated for his own indemnity, to retain the title in himself, till the substitution of mortgage was made. And for that purpose his agreement would have been enforced. But that has been done. There is no complaint on that score. Cole executed a mortgage in pursuance of his undertaking with Elfe, with which the loan as[201]*201sociation were satisfied, and thereupon, released the mortgage previously executed by Elfe to them.
This is, then, the identical question decided by this Court already, in this case. Had Elfe died without selling this lot, his family would have been entitled to the year’s support, as agafnst the loan association. And having conveyed to Cole, and Cole dying, the family of Cole, under the facts of the case, occupy precisely the same situation that Elfe’s would have done.
Conceding all this, my brother Benning now thinks the other decision made in this case was wrong, and that we ought to retrace our steps. His view, if I rightly understand it, is briefly this: That while it may be true, that a mortgage is a security for a debt, yet to constitute it such, the title is conveyed to the mortgagee. And that, consequently, upon the death of the mortgagor, the property mortgaged is not a part of his estate, except the equity of redemption. And that our foreclosure Act of 1799, has made no change in the common law, as-to the rights of the mortgagor and mortgagee. That this being so, upon the death of Cole, he had only an estate in the equity of redemption, and that this only could be taken into the account, in making an allowance for his family. And thus, if one dies with his property encumbered with a mortgage or mortgages, for more than it is worth, that he leaves no estate out of which any provision can be made for his family.
I hold the contrary of this proposition to be law in this State; and I proceed to state the grounds of my opinion.
This question first came before this Court in 1846, the year after its organization, in the case of Davis et al. against Anderson and others, (1 Kelly, 176,) and was discussed with great ability, as the arguments of the learned counsel, in the reports, will establish. When it was solemnly decided, Judge Warner delivering the opinion of the Court, that “ a mortgage in this State is nothing more than a security for the payment of the debt; and that the title to the mortgaged property re[202]*202mains in the mortgagor, until foreclosure and sale, in amanner pointed out by the statute.”
I beg leave to add, that that judgment ought never to have been called in question again. It settled a great question, upon which vast consequences depended. It was no innovation upon past adjudications, but in accordance with the practice of the Courts for near a half century. It should have remained undisturbed.
It seems, however, that the same question came up again in Winter vs. Garrard, (7 Ga. Rep. 183,) when the same eminent Judge who pronounced the former opinion, was again the organ of the Court. Judge Warner said: “In this State, as we have already held, a mortgage is only a security for the payment of the debt of the mortgagor. The foreclosure of a mortgage, in this State, does not vest the fee in the mortgagee ; it only authorizes a sale of the property, and directs the surplus, after discharging the debt, to be paid to the mortgagor or his agent.”
Again, in 10 Ga. Rep. 65, in the case of Ragland vs. The Justices, &c., we say: “With us, this is not an open question.” Shall the day ever come when this can be affirmed of any principle in Georgia? It would seem not.
In Scott, Carhart & Co. vs. Warren & Spicer, already referred to, my brother McDonald, one of the few remaining types of the old school lawyer, as well as gentleman, thus discourses upon this doctrine: “At the time of the execution of the mortgage, then, the estate did not pass absolutely out of the mortgagor, and of course did not vest absolutely in the mortgagee. In England, and in some of the States of the Union, when the condition is broken, the estate is so absolutely vested in the mortgagee, that he may maintain ejectment and recover the premises. This is not the case here. In this State a mortgage, in its inception, is nothing more than a security for the payment of money; and it so continues to be, and nothing more after the breach of the condition. The mortgage, therefore, creates a lien only, and not an es[203]*203tate; and the mortgagee, in relation to the mortgaged property, stands on the same footing of any other creditor. He is entitled to be paid according to the date of his lien. His lien takes effect from the date oí his mortgage; that of the judgment creditor from the date of his judgment.”
Thus stands the case then upon authority. '
But apart from this current of decision from our own Court, let us scrutinize for a moment, the grounds upon which these decisions rest. And startling as the enquiry may appear, I ask, even in England, in whom is the legal seizin of land, the mortgagor or the mortgagee ? This seizin, if in the mortgagor, before the mortgage is executed, must remain in him, or be transferred to the mortgagee. Is it in the mortgagee? It will be found upon examination that, even in Britain, this doctrine has undergone a great change, notwithstanding the explicit terms in which it is usually found laid down in elementary writers, and the dicta of Courts. At first, mortgages were feoffments, or conveyances of land, from debtor to creditor, wiih condition that if the money was not paid at the day appointed, the lands became absolutely vested in the creditor, freed from the condition. Lit. sec. 332. Even a subsequent tender of the money did not avail the debtor.
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[200]*200
By the Court.
Lumpkin J.
delivering the opinion.
When this case was up before, (23 Ga. Rep. 235,) we held, that the one year’s support allowed the family of testator or intestate, out of the estate of the deceased, was paramount to the mortgage lien of the loan association, or any other debt due, or obligation, which the decedent could contract. Such is the express language of the law. Cobb, 296, 298. And in this opinion all the Judges concurred. We do not see that the present case differs from that. It is true that it is alleged that it was cotemporaneously agreed between all the parties, that concurrently with the execution of the deed from Elfe to Cole, that Cole should substitute his mortgage to the loan association, in lieu of Elfe’s, which has been done. And the attempt is made to analogize this case to that of Scott, Carhart & Co., against Warren & Spicer, (21 Ga. Rep. 408,) in which it was held, that where A. takes a conveyance in fee, and at the same time, under an agreement to that effect, mortgages the land back to the grantor,that the transitory seizin of A. for an instant, when the same act that give him the estate conveyed it out of him, did not so vest the title in A., as to subject the land to an existing judgment lien, to the exclusion of the mortgage lien.
But the analogy between the two cases fails entirely in this. In Carhart’s case, the vendor and mortgagee were the same persons. The title to the land was in the mortgagee originally. Before the transfers it was his property. But this lot never belonged to the loan association, but was bought by Elfe, of Freeman & Robert, and by Freeman conveyed to Cole. Elfe might have stipulated for his own indemnity, to retain the title in himself, till the substitution of mortgage was made. And for that purpose his agreement would have been enforced. But that has been done. There is no complaint on that score. Cole executed a mortgage in pursuance of his undertaking with Elfe, with which the loan as[201]*201sociation were satisfied, and thereupon, released the mortgage previously executed by Elfe to them.
This is, then, the identical question decided by this Court already, in this case. Had Elfe died without selling this lot, his family would have been entitled to the year’s support, as agafnst the loan association. And having conveyed to Cole, and Cole dying, the family of Cole, under the facts of the case, occupy precisely the same situation that Elfe’s would have done.
Conceding all this, my brother Benning now thinks the other decision made in this case was wrong, and that we ought to retrace our steps. His view, if I rightly understand it, is briefly this: That while it may be true, that a mortgage is a security for a debt, yet to constitute it such, the title is conveyed to the mortgagee. And that, consequently, upon the death of the mortgagor, the property mortgaged is not a part of his estate, except the equity of redemption. And that our foreclosure Act of 1799, has made no change in the common law, as-to the rights of the mortgagor and mortgagee. That this being so, upon the death of Cole, he had only an estate in the equity of redemption, and that this only could be taken into the account, in making an allowance for his family. And thus, if one dies with his property encumbered with a mortgage or mortgages, for more than it is worth, that he leaves no estate out of which any provision can be made for his family.
I hold the contrary of this proposition to be law in this State; and I proceed to state the grounds of my opinion.
This question first came before this Court in 1846, the year after its organization, in the case of Davis et al. against Anderson and others, (1 Kelly, 176,) and was discussed with great ability, as the arguments of the learned counsel, in the reports, will establish. When it was solemnly decided, Judge Warner delivering the opinion of the Court, that “ a mortgage in this State is nothing more than a security for the payment of the debt; and that the title to the mortgaged property re[202]*202mains in the mortgagor, until foreclosure and sale, in amanner pointed out by the statute.”
I beg leave to add, that that judgment ought never to have been called in question again. It settled a great question, upon which vast consequences depended. It was no innovation upon past adjudications, but in accordance with the practice of the Courts for near a half century. It should have remained undisturbed.
It seems, however, that the same question came up again in Winter vs. Garrard, (7 Ga. Rep. 183,) when the same eminent Judge who pronounced the former opinion, was again the organ of the Court. Judge Warner said: “In this State, as we have already held, a mortgage is only a security for the payment of the debt of the mortgagor. The foreclosure of a mortgage, in this State, does not vest the fee in the mortgagee ; it only authorizes a sale of the property, and directs the surplus, after discharging the debt, to be paid to the mortgagor or his agent.”
Again, in 10 Ga. Rep. 65, in the case of Ragland vs. The Justices, &c., we say: “With us, this is not an open question.” Shall the day ever come when this can be affirmed of any principle in Georgia? It would seem not.
In Scott, Carhart & Co. vs. Warren & Spicer, already referred to, my brother McDonald, one of the few remaining types of the old school lawyer, as well as gentleman, thus discourses upon this doctrine: “At the time of the execution of the mortgage, then, the estate did not pass absolutely out of the mortgagor, and of course did not vest absolutely in the mortgagee. In England, and in some of the States of the Union, when the condition is broken, the estate is so absolutely vested in the mortgagee, that he may maintain ejectment and recover the premises. This is not the case here. In this State a mortgage, in its inception, is nothing more than a security for the payment of money; and it so continues to be, and nothing more after the breach of the condition. The mortgage, therefore, creates a lien only, and not an es[203]*203tate; and the mortgagee, in relation to the mortgaged property, stands on the same footing of any other creditor. He is entitled to be paid according to the date of his lien. His lien takes effect from the date oí his mortgage; that of the judgment creditor from the date of his judgment.”
Thus stands the case then upon authority. '
But apart from this current of decision from our own Court, let us scrutinize for a moment, the grounds upon which these decisions rest. And startling as the enquiry may appear, I ask, even in England, in whom is the legal seizin of land, the mortgagor or the mortgagee ? This seizin, if in the mortgagor, before the mortgage is executed, must remain in him, or be transferred to the mortgagee. Is it in the mortgagee? It will be found upon examination that, even in Britain, this doctrine has undergone a great change, notwithstanding the explicit terms in which it is usually found laid down in elementary writers, and the dicta of Courts. At first, mortgages were feoffments, or conveyances of land, from debtor to creditor, wiih condition that if the money was not paid at the day appointed, the lands became absolutely vested in the creditor, freed from the condition. Lit. sec. 332. Even a subsequent tender of the money did not avail the debtor. He lost the land, no matter how high thp value, or how small the sum it was designed to secure. 5 Reports, 95, 114.
This was too’ oppressive to be borne, and both, Courts of Law as well, as Equity, united to establish a different doctrine. And since the reign of James I., the right of redemption has been so fixed, that the mortgagee could not defeat it, even by incorporating in the mortgage, an agreement to that effect. 1 Vernon, 33, 138, 190, 488; 2 Vernon, 520. Since that time, the mortgagee has had no certain or absolute estate in the land, until after foreclosure; and that is the creation of a new title, and not the confirmation of an old one. 1 Atkins. 603. Even if he recovers the possession by entry, or by suit, he holds not for himself by title ; he must render [204]*204a strict account of the profits; and his possession may be at any moment at the will of the mortgagor terminated. 1 Vernon, 45, 476; 2 Atk. 534. He cannot use it as his own. He will not be permitted to do waste. Cro. Jac. 172; 3 Atkin. 728. He cannot sell or lease so as to bind the mortgagor. 9 Mod. 1. His estate is not considered as real, but personal. 2 Vernon, 401. It is a mere security, a mere charge on the land. 2 Burrows, 969.
A mortgagee is not considered a freeholder for any purpose whatever. His property is personal assets. If he demise it, it will not pass by the words land or real estate. It is not subject to curtesy or dower, the necessary attendants upon legal estates in land. A transfer of the debt puts an end to it. 2 Bur. 969. It has not one characteristic of a legal estate. It is a mere security for money, and a power to gain possession of the land in order to make it Reeves D. R. 53.
I repeat, is the seizin in the mortgagee ? Because it was so of old, when all the consequences followed, shall it bestill so held, when none of the legal incidents attach, even in England ? To hold so, is to disregard reason and every sensible distinction.
If the seizin be not in the mortgagee, it must be somewhere —it is clearly in the mortgagor. It must be in one of them. There is not one quality of a legal estate that does not attach to the mortgagor. It is never treated as personalty. It is not so in settlements by executors and administrators, or in sales by Sheriff, under executions. It is always, and every where, located as real estate in the hands of the mortgagor. It will descend to his heirs. If devised, it requires a will having the requisites of realty. The mortgagor, by the law of England, is entitled to every benefit, and must bear every burden appertaining to freeholders.
I concede, that in England, the mortgagee, by entry or ejectment, may obtain the possession; but that is only for a special purpose; and even when the possession is taken from [205]*205the mortgagor, his title is not altered any more than it is when the tenant of a term gets possession from the landlord or tenant in fee. The mortgagor is still the owner. He is entitled to have all the profits, to the last cent, applied to the payment of the mortgage debt. And at any moment he may recover possession by the payment of the money, with or without the consent- of the mortgagee. Is he not the owner ?
But I forbear to enlarge upon this branch of the argument. If these positions be sound, the pretense set up here for excluding the family of Cole from any allowance out of this property because, under the mortgage, the title or legal estate is in the loan association, is wholly without foundation. And moreover, they go to maintain, upon a basis not to be shaken, the adjudications of this and the Circuit Courts, to the effect, that the interest of the mortgagee is a mere incumbrance or security, and that the legal estate remains in the mortgagor, until after judgment of foreclosure and judicial sale under it. Did the right of the family of Cole depend entirely upon the common law, independent of any aid from our own legislation, I should be prepared to adjudge in their favor. But I cannot avoid the impression, that the claim does derive much support from our own statutes.
While we have attempted to show, that even if our foreclosure Act did not take away the mortgagee’s right to get possession of the land, after condition broken, by suit or entry, that that would not at all affect the point at issue in this discussion, still is it not a significant fact, that no practice or effort of this sort has been known in Georgia since 1799 ? Has any lawyer ever known an ejectment brought by the mortgagee against the mortgagor? The assertion of sucha right, after a suspension of sixty years, would be preposterous. Why should this remedy be resorted to when the process of foreclosure is so much better? Is it strange that it should have been discontinued?
Further, the law in sundry places, in treating of mortgages, speaks of them, not as transfers'of the title to property, [206]*206but as liens. Cobb, 172, 173, and elsewhere. In the distribution of money, a mortgage is considered as a lien, and takes its place according to its priority.
Mortgaged lands are treated by executors and administrators just as the other real estate of the testator or intestate, and mortgage debts are classified by the statute with the other claims against the estate, and the order of payment specified.
The Act of 1799 (Cobb, 288,) declares, that “when any guardian, executor or administrator, chargeable with the estate of any deceased person, to him, her or them committed, shall die so chargeable, his, her or their executors or administrators shall be compellable to pay out of his, her or their estate, so much as shall appear to be due to the estate of such orphan or deceased person, before any other debt of such testator or intestate.”
We have decided that under this Act, the orphan was entitled to be paid, to' the exclusion of the mortgage creditor. (10 Ga. Rep. 65.) If this decision be right, and it has been acquiesced in so far as we know, can there be any doubt that the maintenance provided for widows and children shall be reserved “ notwithstanding any debts, dues or obligations which the testator or intestate might owe ?” (Acts of 1838 and 1850.)
It is suggested that the doctrine we contend works a great practical evil, and that this case illustrates it because the money of the association went to pay for this lot. Suppose it did ? Would not even a vendor’s lien have to yield to a claim like this ? Why should the debt of the loan association be put upon a better footing than the vendor’s lien? It is less favorable. The' company never owned nor parted with this property. They simply advanced the money to pay for it at a most remunerating premium to them, and ruinous to the borrower. Every creditor is supposed to have advanced in money or property a consideration to his [207]*207debtor. Why the preference set up in behalf of this particular? To this particular class of indebtedness? Even a trust debt, the most sacred known to the law, and which overrides a mortgage, must yield to this paramount claim of the family. In short, our opponents would have the Acts of 1838 and 1850 to read — every “debt due or obligation” shall be postponed to the year’s provision for the family of a deceased husband and father, save and except a debt due the loan association for money bought and secured by mortgage !
To accord to the family nothing but the equity of redemption, amounts to nothing, of course, in cases of insolvency, and yet the law intervenes and rescues even this portion of an insolvent’s estate, and appropriates it to the (widow and children.
But I am done. A friendly writer admonishes me that I weaken my opinions by making them too long. I will endeavor to profit by the criticism.
It is insisted that no more rent can be recovered of Elfe than was received by him in this case, unless it could be shown that he was guilty of fraud, or gross negligence. The charge of the Court was, that he was liable for what the property was proven to have been worth. This ground would not make.it necessary to send this case back, and we are not inclined to require the verdict to be sealed. Mr. Elfe was a member of this loan association as well as the administrator of Cole. His position is somewhat antagonistic. After the property was demanded, he no longer acted as the agent of the family, but held adversely to them. And we do not think it hard that he should be made chargable with what he could have got for the rent of the lot.
It is insisted, in the last place, that the verdict is against the weight of evidence, because proof of what the property actually brought, it is argued, is entitled to more credit than the speculative belief of two witnesses as to what it ought to bring. We are not aware of any rule of evidence to this effect. [208]*208What one rents land or hires negroes for, is one thing. What he might have obtained is quite another, and different thing. The latter, we believe, is the usual mode of charging delinquent trustees. This lot has been wrongfully withheld from this family; and the conduct of the defendant stands condemned by the judgment of the law in thus acting.
Judgment affirmed.