Killian v. Willingham

146 S.E. 479, 167 Ga. 712, 1929 Ga. LEXIS 28

• Court: Supreme Court of Georgia
• Decided: January 23, 1929
• Docket: No. 6411
• Status: Published

Opinions

Per Curiam.

An instrument executed in tlie form of a deed for the purpose of securing a debt, which recites in the granting clause: - “has granted, bargained, sold, aliened, transferred, assigned, mortgaged, conveyed, warranted, and confirmed, and by these presents does grant, bargain, sell, alien, transfer, assign, mortgage, convey, warrant, and confirm unto the party of the second part, in trust as herein provided, and unto its successors in trust and assigns, all of the following described property, and all interest of the Association [grantor] therein” (here following a description of realty), and which recites in the habendum clause: “To have and to hold all and singular the above-described property, with all the privileges and appurtenances thereto belonging, unto the said party of the second part, and its successors in trust and assigns, forever in fee simple, but in trust, nevertheless, for the use and purposes hereinafter set forth” (said purposes here following), and containing a clause that “The Association expressly covenants and agrees . . that it will forever warrant and defend the title to the above-described premises and properties unto thé party of the second part, its successors in trust and assigns, against the lawful claims and demands of all persons whomsoever,” and also containing a clause that when the debt secured has been fully paid, the trustee under such instrument, or its successors in trust, “shall reconvey to the Association, its successors or assigns, all of the property, rights and appurtenances then subject to the lien of this instrument, as said Association, or its successors or assigns, may demand or shall direct, or shall cancel these presents and discharge the same of record as is provided may be done, upon payment, discharge, and satisfaction of mortgage indebtedness, in and by the statutes or laws of the State of Georgia; it or they paying to the trustee, or its successor in trust, the reasonable compensation for so doing,” is a deed passing title. Therefore the lien of the contractor and materialman in the present case was inferior to the rights of the bondholders or trustee for them under the deed; and it was not error to enjoin such contractor and materialman from proceeding to enforce a judgment he had obtained upon the foreclosure of his lien.

No. 6411. January 23, 1929.

Judgment affirmed.

All the Justices concur, except Atkinson, J., disqualified, and Russell, O. J., dissenting. H. G. Vandiviere and Morris, Hcmlcins & Wallace, for plaintiff in error. Dillon, Calhoun & Dillon, Hewlett & Dermis, Jones, Bums, Moore & Powers, and Randolph, Parlcer & Portson, contra.