Wynn & Robinson v

Tyner, 139 Ga. 765, 78 S.E. 185, 1913 Ga. LEXIS 596 (1913). Deposit of deeds as collateral security for a debt does not create such a lien on the land as can be foreclosed at law. English v. McElroy, 62 Ga. 413, 1879 Ga. LEXIS 546 (1879). Mortgage as basis of claim to property or proceeds. — A mortgage does not pass title under O.C.G.A. § 44-14-30 and therefore cannot be made the basis of a claim to the mortgaged property; nor can the holder of an unforeclosed mortgage claim the proceeds of such property without showing equitable reasons entitling the holder to do so. Ennis v. Harralson Bros. & Co., 101 Ga. 282, 28 S.E. 839, 1897 Ga. LEXIS 212 (1897). Parties cannot by agreement make the instrument one both retaining title and not retaining title. Wynn & Robinson v. Tyner, 139 Ga. 765, 78 S.E. 185, 1913 Ga. LEXIS 596 (1913). Effect of conveyance to creditor of mortgaged property. — Where a creditor, whose debt is secured by mortgage, takes a conveyance of the property mortgaged in satisfaction of such debt, such conveyance is not effectual to vest in the creditor a title which would prevail upon the trial of a claim afterwards filed by such creditor to prevent the sale of such property under an execution issued from a judgment, junior to the mortgage, but older than the deed. MacIntyre & Co. v. Ferst’s Sons & Co., 101 Ga. 682, 28 S.E. 989, 1897 Ga. LEXIS 298 (1897). Effect of mortgage where title in third person when executed. — Where, according to the express recitals contained in a mortgage, the property described in the mortgage was not in the possession of the mortgagor at the time the instrument was executed, and the title thereto was vested in another person, the mortgage did not take effect then or thereafter as a valid, subsisting lien upon the property it purported to cover. Hogg v. Fuller, 17 Ga. App. 442, 87 S.E. 760, 1916 Ga. App. LEXIS 1001 (1916). Power of mortgagor to sell property named in mortgage. — A contract by a mortgagee, made on receiving the 443 mortgage, that the mortgagee will hold the securities, and that the mortgagor may sell the property named in said deeds and make titles thereto, the proceeds of the sale to go to the credit of the mortgagee, gives to the mortgagor power to sell for cash, free from the mortgage, but not to exchange for other lands. It does not cast upon the purchaser for cash the duty of seeing that the mortgagor appropriates the proceeds according to the agreement. Woodward v. Jewell, 140 U.S. 247, 11 S. Ct. 784, 35 L. Ed. 478, 1891 U.S. LEXIS 2460 (1891). Mortgagee cannot, by purchase of mortgaged property, divest an intervening title of which notice is had. MacIntyre & Co. v. Ferst’s Sons & Co., 101 Ga. 682, 28 S.E. 989, 1897 Ga. LEXIS 298 (1897); Booze v. Neal, 6 Ga. App. 279, 64 S.E. 1104, 1909 Ga. App. LEXIS 260 (1909); Hudson v. Gunn, 20 Ga. App. 95, 92 S.E. 546, 1917 Ga. App. LEXIS 733 (1917). Acquisition of rights adverse to mortgagor by one holding title under mortgagor. — One holding title under mortgagor cannot acquire interest in the property adverse to rights of the mortgagee of which that person had previous notice. Hudson v. Gunn, 20 Ga. App. 95, 92 S.E. 546, 1917 Ga. App. LEXIS 733 (1917). Power of sale given by mortgage is revoked by mortgagors’ death before 44-14-30 the note fell due. Wilkins v. McGehee, 86 Ga. 764, 13 S.E. 84, 1891 Ga. LEXIS 60 (1891). Power of sale in a security deed, being coupled with an interest, is not revoked by grantor’s death. Roland v. Coleman & Co., 76 Ga. 652, 1886 Ga. LEXIS 79 (1886). Reversion to grantor upon payment of indebtedness. — Where the title, if any, conveyed by the terms of a deed amounting to a mortgage would terminate, by the terms of the deed, upon the deed’s becoming null and void on payment of the mortgage indebtedness referred to therein, the title then, by the terms of the deed, would revert to the grantor, notwithstanding that a clause in the deed, that upon the payment of the mortgage debt “this deed shall become null and void and canceled on the record and surrendered to” the grantor, may not amount to a defeasance. Camp v. Teal, 44 Ga. App. 829, 163 S.E. 233, 1932 Ga. App. LEXIS 543 (1932). Possession under mortgage as defense to ejectment. — A mortgage in this state is only a lien, and conveys no title. Possession by virtue of it, therefore, furnishes no defense against an action of ejectment by the holder of the title. Phillips v. Bond, 132 Ga. 413, 64 S.E. 456, 1909 Ga. LEXIS 124 (1909).