Roland v. Coleman & Co. , 76 Ga. 652 ( 1886 )

Jackson, Chief Justice.

This is a bill brought by Roland, administrator, etc., vs. S. T. Coleman & Company to enjoin that firm from selling certain lands conveyed to them to secure a debt. The chancellor refused the writ, and the complainant excepted.

Is the paper a mortgage, or is it a deed which passes the title absolutely to Coleman & Company to secure certain indebtedness, with power to sell in order to pay the debt ?

The instrument conveys the title in the usual form and in. the use of the ordinary words of conveyance in a deed, and then comesthe usual habendum and tenendum clause, and the warranty of-title, and then follows this stipulation:

' “ This conveyance is intended to operate as provided by an act of the general assembly of said state, and the act amendatory thereof, entitled an act to provide for sales of property to secure loans and other debts; the debt hereby secured being $950.00, as shown by note of this date, payable one day after date; and whereas, the said D. Eoland, being engaged in mercantile business, may in the future desire further credits from the said S. T. Coleman & Company, and to secure the payment of which this conveyance is also given, the said D. Eoland agrees that, if the debt to secure which this deed is made is not promptly paid at maturity, including bills for future purchases or advances according to the tenor and effect of the same, then the said S. T. Coleman & Company may, and by these presents are authorized to sell at public outcry, to the highest bidder for cash, all of said property, or a sufficiency thereof to pay said indébtedness as may then be owing, with interest and the cost of the proceeding, after advertising the time, place and terms of sale in the Telegraph and Messenger for four weeks, and the said S. T. Coleman & Company may make to the purchaser or purchasers of said property, good and sufficient titles in fee simple to the same, thereby divesting out of the said D. Eoland all right, title and equity that he may have in and to said property, and vesting the same in the purchaser or purchasers aforesaid. The proceeds'of said'sale are tobe applied first to the payment of said debt and interest, and expenses of this proceeding, which expense is to include attorneys’ fees and any other expense incurred in the premises, the remainder, if any, to pay to said D. Eoland. In witness whereof,.” etc.

Ifc has been held repeatedly by this court that a conveyance of absolute title may be made to a creditor to.secure a debt, outside of the Code, §§1969,1970,1971. Biggers vs. Bird et al., 55 Ga., 650, following Lackey vs. Bostwick, 54 Ga., 45, and followed by Broach vs. Barfield et al., 57 Ga., 601; West vs. Bennett, 59 Id., 507; Gibson vs. Hough & Sons, 60 Id., 588 ; Braswell vs. Suber, 61 Id., 398; Carter vs. Gunn, 64 Id., 651; Thaxton vs. Roberts, 66 Id., 704.

■ Therefore, this conveyance, in the word's used, not only in the terms of the deed up to the ■ close of the warranty, but in the words that the conveyance is intended to operate as provided in certain acts “ to provide for the sales” (not mortgages) “of property to secure loans and'other' debts,” does pass title to Goldman & Company, and the only equity which the administrator of the grantor has is ■ to tender payment of the debt secured, and thus to stop; the sale, as the cases cited and others in our reports abundantly show. • ■ "

This conveyance also has a power to sell, coupled with a big interest in the property, even the title to it to secure the debt, and therefore the power is irrevocable, and does not die with the grantor. Woodson vs. Veal, 60 Ga., 562; Calloway vs. The Peoples Bank of Bellefontaine et al., 54 Ga., 441.

_ Lathrop & Co. vs. Brown, ex'r, et al., 65 Ga., 312, was a mere mortgage with power to sell, which was revocable, and died with the mortgagor, the mortgagees having no interest in the thing, but only in the'proceeds; And such is the fact also in Miller, trustee, vs. McDonald et al., 72 Ga., 20; Wofford vs. Wyly et al., Ib., 863, is also clearly distinguishable, as no time was fixed for the payment of the money, and there was a written obligation to re-convey and no power to sell, but nothing ruled there conflicts with aught said here. • There were mortgages with power to sell without regular foreclosure, but with no pretense that the title passed. In the case' at bar, the title did pass, and this great interest'in the land itself made the power here irrevocable after the grantor’s death.

2. A point was made on the sufficiency of the advertisement. The record is not clear about it, but inasmuch as the sale was postponed by the restraining order, it must be re-advertised any'way, and then it can be made to follow the power to: sell and its terms. If advice be needed ' thereon, the chancellor will doubtless give it.

3. This is not such a suit against the administrator as must wait twelve months to be brought. It is no suit at all. It is the execution of a power to sell under a power given in a deed passing title out of the decedent and vesting it in the grantees for the purpose of selling it and passing title to the purchaser in bar of all equities of the grantor. If the title-be not in the estate of decedent, the property is not assets to be handled by the administrator. Whatever rights he may have growing out of a settlement of accounts between defendants in error and his intestate will attach to the proceeds of sale, and Coleman & Company are perfectly solvent and able to account.

Judgment affirmed.