Chapman v. Ayer , 95 Ga. 581 ( 1895 )

2. The borrower having died and her administrator having brought against the lender an action for the purpose of establishing the title of the intestate to the land, and the balance due upon the note, after deducting certain credits thereon, having been paid into court for the lender’s use, and the evidence for the plaintiff being such that the jury might have inferred that the borrower had never in fact relinquished the right to redeem the land by paying the debt, and also that there had never been an actual agreement by which the security deed became converted into a deed of absolute sale, it was error to grant a nonsuit.

Equitable petition. Before Judge Hardeman. Bibb superior court. April term, 1894.

It appears from the record, that Anna Chapman, on June 3, 1892, gave her note to Thomas A. Ayer for $142.40, payable December 12, 1892, and to secure its payment executed a deed to a lot of land in the city of Macon, taking at the same time a bond from Ayer, conditioned for a reconveyance of the land upon the payment of the note. In the bond a recital of the terms of the note was followed by the words: “Time being the essence of the contract.” The note was not paid at the time it fell due. Subsequently-the maker of the note died, and Ayer commenced proceedings by dispossessory warrant to oust her administrator from the land covered by the deed. The administrator thereupon filed his petition in the superior court, praying for injunction, etc., and setting up, among other things, that the deed was given only as security for a debt, and offering to pay the debt in full. Upon interlocutory hearings, it was ordered that the injunction be granted on condition that the petitioner, within ten days from December 29th, 1893, tender to Ayer $124.09, the same being the amount found to be due him by plaintiff’s intestate; that should Ayer refuse to accept that sum, it should be deposited with the clerk of the court until the case should be finally disposed of. Under this order the clerk gave a receipt to the plaintiff on January 8, and received the amount specified in the order. At the final trial, upon the submission of evidence by the plaintiff, the court granted a nonsuit.

Judgment reversed.