Powers & Co. v. Georgia-Florida Grocery Co. , 7 Ga. App. 592 ( 1910 )

Powell, J.

(After stating the foregoing facts.)

1. “Do particular form is necessary to constitute a mortgage. It must clearly indicate the creation of a lien, specify the debt to secure which it is given, and the property -upon which it is to take effect.” Civil Code of 1895, §2724. “A mortgage in this State is only a security for a debt, and passes no title.” Civil Code of 1895, §2723. An instrument that is a mortgage creates a lien and passes no title; an instrument which passes legal title is not a mortgage. Whether an instrument is a deed or bill of sale passing the legal title, or whether it is a mortgage, depends upon its legal construction; and to that end, the intention of the parties, so far as it appears from the face of the instrument, unless there is an ambiguity (in which case parol evidence would probably be admissible), is controlling. The instrument is to be considered as a whole; all of its terms being harmonized if possible. So construing the present instrument, we are clear that it evinces an intention not to pass legal title, but to create a mortgage lien. Tor instance, the phrase, “I also mortgage,” appearing about the middle of the instrument, is used in such connection of context with the expression, “grant, convey, and mortgage,” found earlier in the paper, as to show that the parties intended the two expressions to be synonymous. Further, the paper contains a waiver of homestead, not generalty, but as to the specified property — a thing which would have been wholly unnecessary if it had been intended ' to pass the title, and not merely to create a lien. In several of the reported cases in this State, this 'circumstance has been regarded as of strong evidentiary value in determining what is or is not a mortgage. In some cases the instrument may operate both as a mortgage and as a bill of sale. See Smith v. DeVaughn, 82 Ga. 574 (9 S. E. 425); Mitchell v. Castlen, 5 Ga. App. 134 (62 S. E. 731). The fact that there was an express provision as to the passing of the legal title, in the case of Smith v. DeVaughn, where the expression “mortgage and convey” was used, distinguishes it from the present case.

2. The point is made that as the mortgage did not provide that it was to attach to future purchases, the instrument bound only the goods on hand at the date of the execution of the paper. The Civif Code of 1895, §2723, in relation to the giving of a mortgage, provides: “It may embrace all property in possession, or to which the mortgagor has the right of possession at the time, or may cover a stock of goods, or other things in bulk but changing in specifics, in which case the lien is lost on all articles disposed of by the mortgagor up to the time of foreclosure, and attaches on the purchases made to supply their place.” The law gives effect to this shifting of the lien in cases of mortgages covering stocks of goods and other articles held in bulk but changing in specifies, and it is not necessary that the parties should in the mortgage specify the legal result which is going to take place as a result of the mortgage’s being given «upon property of the character specified. It is for the law, rather than for the parties, to say what effect a mortgage shall have as to goods being bought and sold in the transaction of those businesses requiring stocks of goods. It follows that the direction given to the case by the trial judge was erroneous.

Judgment reversed.