Southern Railway Co. v. Williams , 160 Ga. 541 ( 1925 )

Hines, J.

1. A deed to land, absolute on its face and accompanied with possession of the property, can not be proved (at the instance of the parties), by parol evidence, to be a mortgage only, unless fraud in its procurement is the issue to be tried. Civil Code (1910), § 3258.

2. Where tenants in common of a tract of land conveyed the same by • quitclaim deed to a third person to secure a loan, but remained in possession of the land, and the grantee in such security deed was never in possession thereof, the heirs at law of one of said tenants in common, who died after the execution of said deed, can, as against the grantee in such deed, show by parol that the same was made only to secure a debt for money borrowed. Lowe v. Findley, 141 Ga. 380 (2), 382 (81 S. E. 230); Waller v. Dunn, 151 Ga. 181 (106 S. E. 93); Copelin v. Williams, 152 Ga. 692 (111 S. E. 186).

3. Where John Maddox, one of said cotenants, conveyed to Ida Copelin by warranty deed his one-half interest in said land, the latter and Mollie Maddox became owners thereof as tenants in common; and both were entitled to possession thereof. Such possession of Ida Copelin would not preclude her cotenant or the heirs of the latter from proving that the deed referred to above in headnote 2 was made to secure debt.

4. Where Ida Copelin, after procuring said deed from John Maddox for his one-half interest in said land, and after the death of Mollie Maddox, for the sole purpose of curing a defect in the title to said property, procured Anna Moore to execute and deliver to her a quitclaim deed to said property, and where thereafter Ida Copelin sold and conveyed by warranty deed said land to the Southern Railway Company, the latter company having notice and knowledge of the rights of Mollie Maddox and her heirs at law in said land, and where said company took possession of said land to the exclusion of said heirs at law, said possession of said Ida Copelin and said Southern Railway Company was not such as to preclude the heirs at law of said Mollie Maddox from showing by parol evidence that the above deed from John Maddox and Mollie Maddox to Anna Moore was one made to secure a debt, and was not intended as an absolute conveyance of said property, both of said parties taking their deeds with notice of the rights of said Mollie Maddox and her heirs at law. Where after the execution of an absolute deed to secure debt the person claiming under the grantee in such deed takes possession of the land without the consent.of one of the grantors in said security deed, possession thus acquired will not prevent said grantor in- such quitclaim security deed, or her heirs at law, from showing by parol that said deed was given only to secure an indebtedness due the grantee therein. Berry v. Williams, 141 Ga. 642 (81 S. E. 881); Copelin v. Williams, supra.

5. The petition alleges that the debt secured by the quitclaim deed from John Maddox and' Mollie Maddox to Anna Moore had been paid by John Maddox, and that the lien held by the said Anna Moore against said property under said deed had been discharged. Assuming that John Maddox would be entitled to contribution .from his cotenant or her heirs at law by reason of this fact, and that he would be subrogated to the rights of the grantee in said security deed, these facts would not make the plaintiffs in this case liable to the defendant, theSouthem Railway Company, for this indebtedness, as no facts appear which would subrogate that company to the rights of John Maddox. Furthermore, the petition alleges that the defendant has been in possession of this land and has received the rents thereof since August 9, 1918, of an annual value of $120. So if the plaintiffs were liable to the defendant for this indebtedness, an accounting would be necessary in order to determine the amount due. Under these circumstances no formal tender of the actual amount which may be due under this security deed was necessary. Wynne v. Fisher, 156 Ga. 656 (119 S. E. 605); Fletcher v. Fletcher, 158 Ga. 899 (124 S. E. 722). If on the trial it should appear that the debt had been partially but not wholly discharged, and that for any, reason the defendant was entitled thereto, a verdict could be rendered declaring the amount of the debt remaining unpaid, and finding - the property for the plaintiffs upon the payment of such amount. Berry v. Williams, supra.

No. 4868. June 20, 1925.

6. Applying the above principles, the court did not err in overruling the demurrer to the petition.

Judgment affirmed.

All the Justices concur, 'except Gilbert, J., absent for providential cause. Harris, Harris & Popper, John B. L. Smith, Grady G. Harris, and J. LeQonie Smith, for plaintiff in error. Brock, Sparks & Bussell, contra.