Hudson v. Gunn , 20 Ga. App. 95 ( 1917 )

Jenkins, J.

1. In this State the lien of a mortgage does not pass title or carry with it the right of possession by the mortgagee. Civil Code (1910), § 3256.

(o) The mortgagee can not, by an attempted purchase of mortgaged property, divest an intervening title of which notice is had. McIntyre v. Ferst’s Sons & Co., 101 Ga. 682 (28 S. E. 989; Booze v. Neal, 6 Ga. App. 279 (2), 281 (64 S. E. 1104).

Decided May 11, 1917.

Trover; from Warren superior court—Judge Walker. October 4, 1916.

L. D. McGregor, for plaintiff in error. M. L. Felts, contra.

(6) The issue in an action of trover is ordinarily one of title. Berry v. Jackson, 115 Ga. 196 (41 S. E. 698, 90 Am. St. R. 102) ; Harden v. . Lang, 110 Ga. 392, 397 (36 S. E 100) ; Campbell v. Trunnell, 67 Ga. 518. The object of such a suit is the recovery of specific property' claimed, or its equivalent in money. Milltown Lumber Co. v. Carter, 5 Ga. App. 344 (63 S. E. 270). In such an action it is only incumbent on the plaintiff to show his title, conversion by the defendant, and, where he elects to take a money judgment, the value of the property. Pryor v. Brady, 115 Ga. 848, 850 (42 S. E. 223); Rushin v. Tharpe, 86 Ga. 779, 780 (15 S. E. 830) ; White v. White, 71 Ga. 670 (2).

2. While one holding title under a mortgagor can not acquire an interest in the property adverse to rights of the mortgagee of which he had previous notice (Towler v. Carithers, 4 Ga. App. 517, 61 S. E. 1132), still a judgment for the property sued for may be rendered in trover in favor of one so claiming and against such a mortgagee in possession, without a tender of the amount due on the mortgage, such a recovery being in fact'subject to the mortgagee’s right of foreclosure. In those jurisdictions in which a mortgage passes title a different rule may obtain, and the plaintiff in trover might be required to tender the amount due on such mortgage as a prerequisite to his action.

Judgment affirmed.

Broyles, P. J., and Bloodworth, J., concur.