Seals v. Cashin

1 Georgia Decisions 76

• Court: Richmond Superior Court, Ga.
• Decided: January 15, 1843
• Status: Published

Opinion

' But this Court is not now deciding on 'norisracres at common law : It is to decide «her w ¡ <- t.v.-» and (if n of a mortgage, under the Laws of Georgia so lb; a - tb° io w] ° date, remaining in the mortgagor, whether fie coo,buen be tbifiatoj, or net. The first Act was passed in 1768, n re1-1 ion to ¡%-c .rC-o mo-tvatres and other deeds. It declares, tbit r-onu.'g n *V- ■■■: !• ■ cm ¡rued to bar any widow of any mu" cm or <d bum ami ¡cu o,,from her dower, and right in ru. ;> fo- sc: 1 Lnd<- and .enoruturs ; unless she should relinquish the same. The statutory provision, which alters the entire relation, which existed at common Law, and which prescribes the mode in which mortgagees are to obtain their money, is as follows : By the Act of 1790, (Prince D. 423.) when the term of payment, stated in the mortgage, has passed, the mortgagee must apply to the Superior CJaurt, in case of land, and obtain a Rule Nisi, for the sfflorts gagpr to pay the money into,i3part, by a time stated in the rule ; “and if he Jail to do so, me Court is then to giro judgment, for ii/e amount due on the mortgage, and order the mortgaged property gold, asdte cases of execiytioa, and the proceeds to be paid to the mortgagee, or his attorney.But when there shall be a surplus,“it shall be paid oyer to the mortgagor, or his agen*;.

From the foregoing statutory provisions, can it be contended, that a mortgagee stands in the situation of a trustee to the mortgagor ? Or must a Court of Equity now be applied to, in order to protect the mortgagor’s rights of redemption ? Or can it now be said, that a mortgagee has the right to take possession of the mortgaged property, and hold the same, until the mortgagor shall file his bill in Equity', tobe allowed to redeem the same? I apprehend no such right would now be considered as existing, in the mortgagee, if so, I apprehend that a mortgage, in this State, will he define Í to be, an incumbrance, created upon either real or personal properly, to secure the payment of a debt, either due by specialty, or simple contract; and this incum-brance mayr, and must be enforced, at Law, as prescribed by our Statute. And this mode of enforcing this incumbrance is very/ similar to other common law proceedings, in obtaining judgment, in other cases of contract. And the same proceedings are tobe had, in both instances, to wit: that the property must be sold by the Sheriff, and after paying off the plaintiff’s demand,' if there be a surplus, this is to be paid to the mortgagor, or his agent. Or, in case of judgment and fi. fa. the surplus is to be returned to the defendant. From the foregoing history of mortgages, both at common law and under the provisions of our Statutes, if is evident, that Judge Montgomery7, in his intimation of an opinion, had reference, solely, to mortgages in England, where a mortgagee is considered a trustee for the mortgagor : for the plain reason, that, at Law, the mortgagor cannot have the power to redeem, and must go into a Court of Equity, where it is considered as a trust estate. But as our Statutes have pntirely altered the rights of mortgagor and mortgagee, and the proceedings must be had at Law, and that Law giving the mortgagor all the rights, which he could claim, in Equity, in England; the mortgagee has not the power, now, to seize the lands, and collect the rents and profits, and thereby make himself a trustee, The Sheriff is nqw thmonly person, who can take possession of the lands, aijdnot then, until after a foreclosure, arid ⅜ fa. to sell. And, at that sale, the mortgagee has no greater rights, than any other person has aifShef-■iff’s sales.

I am satisfied that a mortgage, under the Laws of Georgia, is riot a conveyance in trust, but is an incumbrance created to pay a debt.

Secondly ; That a mortgage is not an assignment in trust, to pay debts, or any part thereof.

Thirdly : Mor is a mortgage a transfer of property, in satisfaction of a debt.' It only creates a lien on the property, from .its dpi.e, securing the payment of the debt, and does not operate as a payment, until foreclosure and sale.

This Court, for the reasons before assigned, does decide, that mortgages are not w ithin the provisions of the Act of 181S ; and the grounds, taken by the complainants, were, that this mortgage, made by Cashin, one of the defendants, is within the provisions of said Act, and therefore void, as against his other creditors: and this Court having deckled that this mortgage is not within the provisions of said Act, it is therefore ordered that the demurrer in this case be, and is hereby, sustained, and the bill dismissed.