Ray v. Harris , 138 Ga. 432 ( 1912 )

Evans, P. J.

A debtor executed a promissory note, and a mortgage to secure the same. The note was not under seal, but the mortgage was executed under seal. The note and mortgage were separately executed, and were two separate and distinct instruments, though contained on the same sheet of paper. Suit was brought on the note more than six years but within twenty years after its maturity, and copies of the note and of the mortgage were attached, and it was alleged that the note and mortgage were a part of the same transaction, and that a reference in the mortgage to the note as being secured by it constituted an acknowledgment under seal of the debt represented by the note. There was no prayer for the foreclosure of the mortgage. Held, that, as the note showed on its face that the action upon it was barred by the statute of limitations, there was no error in sustaining a demurrer to the petition, on that ground. Allen v. Glenn, 87 Ga. 414 (13 S. E. 565). Judgment affirmed.

July 11, 1912.

Complaint.- Before Judge Felton. Crawford superior court. November 27, 1911.

L. D. Moore, for plaintiff. B. H. Culverhouse and A. J. Danielly, for defendant. All the Justices concur.