Massillon Engine & Thresher Co. v. Burnett

91 S.E. 786, 19 Ga. App. 487, 1917 Ga. App. LEXIS 183

Opinion

Luke, J.

1. An instrument in the usual form of a security deed under section 3306 of the Civil Code of 1910, but containing a clause providing that should the grantor “faithfully perform and keep all the covenants and agreements herein set out, this conveyance shall cease, determine, and be void,” is a mortgage, and not a deed. Burckhalter v. Planters Loan & Savings Bank, 100 Ga. 428, 432 (28 S. E. 236); Scott v. Hughes, 124 Ga. 1000 (53 S. E. 453).

2. Especially is the instrument construed in this case a mortgage and not a deed passing title, because its first words are: “This mortgage, made this the 18th day of September, 1915,” and in several other places therein it is described as “this mortgage;” indicating that it was the intention of the parties that the instrument be construed to be a mortgage.

3. The construction of the contract upon which the claimant based title being the only question presented for determination, and the trial court having correctly construed the instrument to be a mortgage and not a deed, the court did not err in overruling the certiorari.

Judgment affirmed.

Wade, G. J., and George, J., concur.