Hines, J.
(After stating the foregoing facts.)
1. In the first ground of the amendment to the plaintiff’s motion for new trial it is alleged that the court erred in the following charge to the jury: “ If you believe from the evidence that the contract for the sale of the land was made by Samuel Westmoreland to Mr. Lee Hand, December 21, 1914, was made for the purpose of securing a debt, and was not intended to convey absolute title to Lee Hand, then, upon the payment of the debt and interest on it, the defendant would be entitled to recover the land.” It it insisted that this charge was not adjusted to the facts, and submitted a theory unsupported by any substantial evidence in the case, for which reason it was misleading to the jury and prejudicial to the movant.- It is urged that the option and contract executed by the parties on December 21, 1914, are plain and unambiguous, and that the undisputed evidence shows that when said papers were executed Hand delivered to Westmoreland all the notes and evidences of debt- held by him against Westmoreland, showing a cancellation of said debts and a purchase of the property, with an option to Westmoreland to buy the same back by a given time by the payment of a given sum. Movant insists that these facts show that the transaction was completely changed from that of a loan, secured by a deed to land, to that' of one putting title in Hand, with an option to Westmoreland to rebuy. Standing alone, this contention would be good; but Westmoreland remained in possession, and there is evidence in the record that Hand stated, after Westmoreland’s death, that the papers which he held to the land were to secure the indebtedness of Westmoreland to Banks, which he had taken up, and Westmoreland’s debt to himself. So long as a party remains in possession of land he can show that conveyances made .by him of his land were mere security for debt; and upon the payment thereof he will be entitled to redeem.
Where a grantor executes a deed absolute in form and remains in possession of the land, parol evidence is admissible to show that the deed was intended as security only, and such evidence does [79] not offend the rule which makes inadmissible párol evidence to vary the written terms of .an absolute deed. Askew v. Thompson, 129 Ga. 325 (58 S. E. 854); Mercer v. Morgan, 136 Ga. 632 (71 S. E. 1075); Lowe v. Findley, 141 Ga. 830 (81 S. E. 230); McNair v. Brown, 147 Ga. 161 (93 S. E. 289). If in the face of an absolute deed the maker can by parol evidence show that it was made only to secure a debt, we see no reason why in this case it can not be shown by parol evidence that the contract between Hand and Westmoreland, by which the former claims title to the land in dispute, was given only to secure a debt. It was the provincé of the jury to determine, under the facts, which contention was true; and they having found against the plaintiff, we can not say that their finding was without evidence to support it. The charge complained of was adjusted to the evidence, and could not mislead the jury.
3. In the second special ground it is urged that the court fell into error in this charge: “ If you find there was gross inadequacy of consideration, coupled with great mental disparity of intellect, or that [at] the time Westmoreland was of unsound mind — of an unsound mind within the meaning of the law, and was incapable of making a 'contract, and find the contract was not binding upon him, — the execution of the contract would place into Hand the title to the property in dispute as security for his debt, and defendant would be entitled to recover the premises in dispute on the pa3'ment of the debt of $1763.20, together with interest on it. from December 21, 1914, to this date.” The plaintiff insists that this was inapt and misleading under the evidence in the case. He urges that if the contract of December 21, 1914, between Hand and Westmoreland, was void for either of the reasons set out in this charge, then this contract would not place in Hand the title to the property in dispute as security for his debt. We are not called upon to determine whether this charge was an accurate statement of the law in reference to the rights of Westmoreland; but it was more favorable to'the plaintiff than to the defendant. The plaintiff in error can not complain of instructions prejudicial to the defendant in error. He will never be heard to complain of an instruction which is more favorable to him than it ought to have been. Ausley v. Cummings, 145 Ga. 750 (89 S. E. 1071).
But it is insisted by counsel for the plaintiff that the above charge conveyed to the jury the idea that this contract might be [80] valid as placing the title in Hand as security for his debt, but invalid as conveying an absolute title with an option to Westmoreland to buy back. We do not see how the jury could have gotten this idea from this charge, in view of the entire charge of the court. The court- distinctly instructed the jury that the plaintiff contended that he was the owner of this tract of land, and that the contracts 'and deeds offered in evidence by him would entitle him to recover in this case, unless the defendant by a preponderance of the evidence showed that he was not entitled to recover. Under this charge the jury could not have gotten the idea that this contract was valid as a security for debt, but invalid as a conveyance of title to Hand.
4. In the third ground the plaintiff complains of this charge: “ If you find in favor of the plaintiff, that this was a valid contract — that Westmoreland was mentally able to make a contract, that he was a sane person as defined to you, and did make this deed, and that there was no gross inadequacy of consideration, coupled with disparity of intellect, that it was a legal and binding obligation, then that would pass absolute title to Mr. Lee Hand, and you would find in his favor, and the form of your verdict would be, ‘We, the jury, find for the plaintiff the premises in dispute/ unless you find that during the life of the option between the 21st of December, 1914; and the first of Januar}1, 1916, that the right granted in the option to Westmoreland was exercised by the administrator . . of Westmoreland.” The plaintiff insists that the latter portion of this charge, beginning with the word “ unless,” submitted and suggested an issue to the jury without support by the evidence and without pleadings to authorize it, for which reason it confused and misled the jury, to the prejudice of the plaintiff,
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Hines, J.
(After stating the foregoing facts.)
1. In the first ground of the amendment to the plaintiff’s motion for new trial it is alleged that the court erred in the following charge to the jury: “ If you believe from the evidence that the contract for the sale of the land was made by Samuel Westmoreland to Mr. Lee Hand, December 21, 1914, was made for the purpose of securing a debt, and was not intended to convey absolute title to Lee Hand, then, upon the payment of the debt and interest on it, the defendant would be entitled to recover the land.” It it insisted that this charge was not adjusted to the facts, and submitted a theory unsupported by any substantial evidence in the case, for which reason it was misleading to the jury and prejudicial to the movant.- It is urged that the option and contract executed by the parties on December 21, 1914, are plain and unambiguous, and that the undisputed evidence shows that when said papers were executed Hand delivered to Westmoreland all the notes and evidences of debt- held by him against Westmoreland, showing a cancellation of said debts and a purchase of the property, with an option to Westmoreland to buy the same back by a given time by the payment of a given sum. Movant insists that these facts show that the transaction was completely changed from that of a loan, secured by a deed to land, to that' of one putting title in Hand, with an option to Westmoreland to rebuy. Standing alone, this contention would be good; but Westmoreland remained in possession, and there is evidence in the record that Hand stated, after Westmoreland’s death, that the papers which he held to the land were to secure the indebtedness of Westmoreland to Banks, which he had taken up, and Westmoreland’s debt to himself. So long as a party remains in possession of land he can show that conveyances made .by him of his land were mere security for debt; and upon the payment thereof he will be entitled to redeem.
Where a grantor executes a deed absolute in form and remains in possession of the land, parol evidence is admissible to show that the deed was intended as security only, and such evidence does [79] not offend the rule which makes inadmissible párol evidence to vary the written terms of .an absolute deed. Askew v. Thompson, 129 Ga. 325 (58 S. E. 854); Mercer v. Morgan, 136 Ga. 632 (71 S. E. 1075); Lowe v. Findley, 141 Ga. 830 (81 S. E. 230); McNair v. Brown, 147 Ga. 161 (93 S. E. 289). If in the face of an absolute deed the maker can by parol evidence show that it was made only to secure a debt, we see no reason why in this case it can not be shown by parol evidence that the contract between Hand and Westmoreland, by which the former claims title to the land in dispute, was given only to secure a debt. It was the provincé of the jury to determine, under the facts, which contention was true; and they having found against the plaintiff, we can not say that their finding was without evidence to support it. The charge complained of was adjusted to the evidence, and could not mislead the jury.
3. In the second special ground it is urged that the court fell into error in this charge: “ If you find there was gross inadequacy of consideration, coupled with great mental disparity of intellect, or that [at] the time Westmoreland was of unsound mind — of an unsound mind within the meaning of the law, and was incapable of making a 'contract, and find the contract was not binding upon him, — the execution of the contract would place into Hand the title to the property in dispute as security for his debt, and defendant would be entitled to recover the premises in dispute on the pa3'ment of the debt of $1763.20, together with interest on it. from December 21, 1914, to this date.” The plaintiff insists that this was inapt and misleading under the evidence in the case. He urges that if the contract of December 21, 1914, between Hand and Westmoreland, was void for either of the reasons set out in this charge, then this contract would not place in Hand the title to the property in dispute as security for his debt. We are not called upon to determine whether this charge was an accurate statement of the law in reference to the rights of Westmoreland; but it was more favorable to'the plaintiff than to the defendant. The plaintiff in error can not complain of instructions prejudicial to the defendant in error. He will never be heard to complain of an instruction which is more favorable to him than it ought to have been. Ausley v. Cummings, 145 Ga. 750 (89 S. E. 1071).
But it is insisted by counsel for the plaintiff that the above charge conveyed to the jury the idea that this contract might be [80] valid as placing the title in Hand as security for his debt, but invalid as conveying an absolute title with an option to Westmoreland to buy back. We do not see how the jury could have gotten this idea from this charge, in view of the entire charge of the court. The court- distinctly instructed the jury that the plaintiff contended that he was the owner of this tract of land, and that the contracts 'and deeds offered in evidence by him would entitle him to recover in this case, unless the defendant by a preponderance of the evidence showed that he was not entitled to recover. Under this charge the jury could not have gotten the idea that this contract was valid as a security for debt, but invalid as a conveyance of title to Hand.
4. In the third ground the plaintiff complains of this charge: “ If you find in favor of the plaintiff, that this was a valid contract — that Westmoreland was mentally able to make a contract, that he was a sane person as defined to you, and did make this deed, and that there was no gross inadequacy of consideration, coupled with disparity of intellect, that it was a legal and binding obligation, then that would pass absolute title to Mr. Lee Hand, and you would find in his favor, and the form of your verdict would be, ‘We, the jury, find for the plaintiff the premises in dispute/ unless you find that during the life of the option between the 21st of December, 1914; and the first of Januar}1, 1916, that the right granted in the option to Westmoreland was exercised by the administrator . . of Westmoreland.” The plaintiff insists that the latter portion of this charge, beginning with the word “ unless,” submitted and suggested an issue to the jury without support by the evidence and without pleadings to authorize it, for which reason it confused and misled the jury, to the prejudice of the plaintiff,
There were no pleadings on the part of the defendant that he, as the administrator of Westmoreland, had undertaken to exercise the option given to Westmoreland to buy back this land by January 1, 1916. There was no evidence that the administrator had undertaken to exercise this option before it expired. There is evidence that, prior to January 1, 1916, the administrator offered to pay to the plaintiff $1763.20, the price at which Westmoreland agreed to buy this land under this option, with interest thereon from the date of said option, less the rents received 'by the plaintiff from this land for the year 1915. If the plaintiff had in fact [81] bought this land from Westmoreland absolutely, and had only given Westmoreland the right to rebuy it, then the plaintiff would have been entitled to the rents of this place at the time of his purchase, unless under some arrangement he was to have the land free of rent during the life of the option. When title is shown in the plaintiff and occupation by the defendant, an obligation to pay rent is generally implied. Civil Code, § 3692. But there is nothing in the evidence to show that Westmoreland was not to pay rent. There is evidence to the effect that Westmoreland worked this land during the year 1915 under the direction of the plaintiff, which would hardly be the case if he was not to pay rent therefor. Instructions inapplicable to the pleadings and evidence should not be given; and where a charge gives a party the benefit of a material defense not set up in the pleadings, and without evidence to support it, a new trial must result. Southern Marble Co. v. Pinyon, 144 Ga. 259 (2), 261 (86 S. E. 1086).
5. The plaintiff complains, in the fourth ground, of another charge, in which the court submitted to the jury the question whether the defendant had tendered to the plaintiff the amount due upon the option according to its terms. This charge, as the one set out in the third ground, gave the defendant the benefit of a defense not set up in his answer, and not supported by the evidence. Eor the reasons stated in dealing with the last ground, this was an error which requires the grant of a new trial.
If the papers under which the plaintiff claims title to this land were given merely to secure a debt due by Westmoreland, then Matthews, as administrator of Westmoreland, would hé entitled to redeem the land by paying the debt due by Westmoreland to the plaintiff, with interest, less any rents which the latter received for the land for the year 1915, or since that time. On the other hand,, if the plaintiff owned this land absolutely, and had only given Westmoreland the right to rebuy it by January 1, 1916, then the plaintiff would be entitled to recover in this case, unless the administrator offered to exercise the right given to his intestate under this option to buy back this land by paying to the plaintiff the price agreed on for the repurchase of this land by Westmoreland by January 1, 1916.
6. The fourth headnote needs no elaboration.
Judgment reversed.
All the Justices concur.