Turner v. Williams, Bernie & Co. , 63 Ga. 726 ( 1879 )

Warner, Chief Justice.

This was a claim case, and on the trial thereof, the jury, under the rulings of the court, found the property not subject to the fi. fas. levied thereon. A motion for a new trial was made on the grounds therein stated, which was overruled, and the jilaintiff excepted.

The main ground of error complained of is that the court sustained the demurrer to the plaintiff’s equitable amendment to the issue in the case, as set forth in the record, in which it is alleged that on the 10th of June, 1873, Devaughn, the defendant in fi.fa., made a deed to the claimants under the Reese act of 1871 (the title under which they now claim the property), to secure payment of a debt of $1,200.00, the claimants executing bond conditioned to re-convey the property on payment of the debt by Devaughn; that said deed was executed and delivered by Devaughn believing and understanding it was a mortgagej and was accepted as a mortgage, and by fraud, accident, or mistake, said conveyance, in fact, does not express the true intent and meaning of the parties thereto, being a pretended deed of conveyance when in fact it was uñderstood to be a mortgage only, and the plaintiff in fi. fa. prays that said instrument may be so reformed as to speak the intention of the parties. The plaintiff also alleged by way of amendment, that since the making of said deed, Devaughn had improved the property to the value of $2,177.00, and plaintiff in fi. fa. insists that be is equitably entitled to have that improved value of the property applied to his fi.fas. The plaintiff obtained his judgments against Devaughn on which liis two fi.fas. levied on the property were issued; on the first of May, 1874, nearly a year after the date of the claimants’ deed, which was recorded within twelve months, but not within three months, as required for the recording of mortgages. It does not appear at what time the plaintiff’s debt was contracted, nor does it appear whether the property conveyed in the deed, including the improvements, was of greater value than the claimants’ debt which the deed was given to secure. Assuming that the deed was intended to be a mortgage as the plaintiff alleges, still, he does not offer to pay the claimants’ debt which it was given +o secure, for the purpose of redeeming the same for bis own benefit. "We find no error in sustaining the demurrer to the plaintiff’s amended equitable issue, nor in overruling his motion for a new trial.

Let the judgment of the court below be affirmed.