Dykes v. McVay

This was an action of ejectment brought for the recovery of a tract of land. The land had been conveyed by deed to the plaintiff by the defendant to secure a debt. The plaintiff had sued the debt to judgment, conveyed the land back in order to sell it to pay the judgment, levied upon it, an'd was met by affidavit of illegality, which was pending on appeal when plaintiff sued in ejectment for the land, and recovered a verdict. A motion was made for a new trial; it was denied, and defendant excepted.

1. The deed made by the trustee with-the consent of the sole beneficiary was good. Code, §2327. Though made to secure a debt, it passed the title. The assent of *505the beneficiary being on the deed, and part of it, was properly recorded with it, and being in writing is sufficient evidence of her consent to the sale. 54 Ga., 529. :

2. That a deed to secure a debt passes the legal titíe and will authorize recovery in ejectment, see 55 Ga., 691; 58 Ib., 459, and cases seq.

3. The plaintiff’s deed back to defendant filed in the clerk’s office in order to sell the land under the execu* tion for the debt, did not pass the title to defendant except for sale by the sheriff. It was not delivered to defendant, but he got it from the clerk’s office by paying the recording fee and without the knowledge of plaintiff. It was right to let in parol proof to show how he got it, and that evidence shows that it was without the knowledge or consent of the plaintiff. Except for sale under the fi. fa., it was a mere escrow.

4. We hardly think that the suing the debt to judgment barred the ejectment suit. The cause of action is not exactly the same. One is for the debt, and judgment on it would bind all defendant’s property j the other is for the land, title to which was given to secure this debt. Under section 2894 of the Code, they must be for the same cause of action to require election. Nor is the pendency of the illegality to the execution, when levied on this land, a bar to this suit for the land, as now it seems to us ; but it is unnecessary to rule these points. The court below rejected the pleas and evidence under them, because filed too late, being in his judgment, pleas in abatement, for which he has authority. 39 Ga., 559.

. The only real defense to the action is to pay up the debt. When the defendant does, that, or tenders it, he is entitled in equity to a reconveyance; but if he wants equity, he must do equity; if he stands on law, the legal title is in the plaintiff, and he must fall. 57 Ga., 601.

Judgment affirmed.