Walden v. Walden
| Decision Date | 12 April 1907 |
| Citation | 57 S.E. 323,128 Ga. 126 |
| Parties | WALDEN et al. v. WALDEN. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
Where a mortgage described the land covered by it thus: "One tract or parcel of land lying in Jefferson county, Georgia in the 79th district, G. M., containing one hundred acres and bounded as follows: On north by my land; east by land of K. P. Walden; on south by W. L. Phillips; on west by Sarah and Emily Walden"--such description was not void for uncertainty.
Parol evidence to identify such description with the land to which it applied was admissible.
Standing alone, an entry of a levy on a fi. fa. would be insufficient where couched in the following terms: "Levied the within fi. fa. on a tract or parcel of land lying in Jefferson county, Georgia, 79th district, G. M., containing one hundred acres, more or less, levied on as the property of Thomas E Walden."
Whether such a description would be aided by the fact that the execution was based on the foreclosure of the mortgage, and directed a levy to be made upon certain described property and by the presumption of a performance of his official duty by the levying officer, where there was no conflict between this description, so far as it went, and that in the mortgage and execution--quaere.
Where a claim was interposed to such a levy, more fully describing the property levied on, and showing that it was the same as that described in the mortgage and execution, and a trial was had, and the property was found subject, and a sale was had accordingly, in a suit against the purchaser at the sheriff's sale by the claimant to recover the possession, the latter was estopped from denying the sufficiency of the description of the property contained in the levy.
A plea of res adjudicata is amendable by adding thereto the judgment claimed to be conclusive; and this may be done, although the judgment was not entered up at the time when the verdict was found, but was duly entered nunc pro tunc after the commencement of the action in which it was pleaded.
Where property to which minors claimed title was levied on under an execution against another person, and a next friend, for and on behalf of the minors, interposed a claim thereto, and this was duly tried without objection to the form of the proceeding, and the property was found subject, this would be conclusive upon the minors.
Where a claim was interposed by a next friend on behalf of a minor, and an affidavit in forma pauperis was made in lieu of giving bond, such affidavit should not have stated the inability of the next friend individually to give bond and security; but where this was done, and no objection was made thereto until after verdict, it will not render the proceeding void.
Although a judgment may not be entered on the verdict at the proper time, the court may allow this to be done nunc pro tunc at a later date, on proper application therefor.
Generally a judgment entered nunc pro tunc relates back to the time when it should have been entered and completes the record. Where there are no intervening equities, the judgment so entered will sustain a plea of res adjudicata between the parties as to the matter involved in the litigation.
Error from Superior Court, Jefferson County; B. T. Rawlings, Judge.
Action between W. M. Walden and others and William Walden. From the judgment, W. M. Walden and others bring error. Affirmed.
Where a judgment is not entered on the verdict at the proper time, the court may allow it to be done nunc pro tunc on a later date on a proper application therefor.
William M. Walden, and Sallie, Katie, and Preston Walden, by their next friend, brought suit against William Walden to recover certain land. The defendant filed a plea of res adjudicata. A verdict was rendered in favor of the defendant, but was reversed by this court, on the ground that it did not appear that, in the claim cases on which this plea was based, any judgments had been entered on the verdicts of the jury. After the case was returned to the superior court, on motion, the court entered judgments nunc pro tunc in the claim cases. When the case again came on for trial, a mortgage, its foreclosure, the execution based thereon, the levy, and a sheriff's deed conveying the property to the present defendant, were introduced in evidence; also claims which had been interposed by guardians ad litem for the present plaintiffs, together with verdicts finding the property subject, and the judgments which had thus been entered nunc pro tunc. Certain other evidence was also introduced, which need not now be mentioned. The court directed a verdict for the defendant, and the plaintiffs excepted.
E. L. Stephens, for plaintiffs in error.
Cain & Hardeman, for defendant in error.
LUMPKIN, J. (after stating the foregoing facts).
1, 2. The defendant claimed the land in controversy under a sheriff's sale. He pleaded that it had been adjudicated that the land was subject to sale on the trial of claims interposed to the levy by the present plaintiffs, through certain persons as their next friends; that he had bought after this under the sheriff's sale; and that the matter was res adjudicata. A mortgage was offered in evidence, which contained the following description: "One tract or parcel of land lying in Jefferson county, Georgia, in the 79th district, G. M., containing one hundred acres, and bounded as follows: On north by my own land; east by land of K. P. Walden; on south by W. L. Phillips; on west by Sarah and Emily Walden." The proceedings to foreclose the mortgage, and the execution issued thereon, were also offered in evidence. Objection was made to the admission of this evidence on the ground that the mortgage was void because of want of a legal description of the land sought to be included in it, and that for this reason the foreclosure proceedings were also void. The south, east, and west boundary lines of this land were fixed by the lands of other persons named. As to the north line only was it contended that there was any uncertainty, because the tract mortgaged was described as bounded on that side by the mortgagor's land. Having thus given the boundaries on three sides of the land, and the quantity of it, the fourth side could be readily located; and such a description was not void for uncertainty. Ray v. Pease, 95 Ga. 153, 22 S.E. 190; Atlanta & W. P. R. Co. v. Atlantic, B. & A. R. Co., 125 Ga. 529, 54 S.E. 736. In Gress Lumber Co. v. Coody, 94 Ga. 519, 21 S.E. 217, the court went further than we find it necessary to do in this case. In Huntress v. Portwood, 116 Ga. 351, 42 S.E. 513, it appeared that the makers of a deed owned a tract of land containing 307 1/2 acres, more or less, of an irregular shape. They executed a deed describing the land conveyed as "containing two hundred acres, more or less, bounded as follows: [Giving the names of other landowners on the north, east, and south]; on west land said Absalom G. Evans and Mary E. Evans [the makers]." A majority of the court held that this was not a sufficient description; Simmons, C.J., dissenting. If the opinion of the majority of the court be accepted, that case is distinguishable from this on the ground that there the quantity of the land was not definitely fixed, but described as "more or less," and therefore the western boundary line might be located at a more easterly or westerly place, according as the exact contents of the land conveyed should be fixed. Here a definite quantity of land was mentioned, and the difficulty in locating the last boundary line just above suggested did not exist. Parol evidence was admissible to fit this description to the land to which it applied. Thus, for instance, it could be shown where were the boundaries of the adjacent tracts named, and where the north line ran which made the tract include the one hundred acres. The objection to parol evidence for that purpose was properly overruled.
3-5. The entry of levy was also objected to, when offered in evidence. It was in these words: This levy, standing alone, is plainly insufficient in description. It has two aids to help it: First. It is the levy of a mortgage fi. fa., which could only be lawfully levied on the mortgaged property; and it is possible that some presumption as to the officer doing his duty may arise--the description as far as it went corresponding with that in the mortgage. Connolly v. Atlantic Contracting Co., 120 Ga. 213, 47 S.E. 575. Second. The real saving aid to this levy, as between the parties litigant, is that the present plaintiffs interposed to such levy claims, in which they stated that the land had been levied on, and described it as in the mortgage, which description we have held above to be sufficient. The principle that, as between the parties, a defective entry of levy will be aided by the allegations or description of a claim affidavit, and that the claimant will be estopped from denying such allegations, has generally been applied to levies on personalty. Pearce v. Renfroe, 68 Ga. 194; Drawdy v. Littlefield, 75 Ga. 215 (5); Cohen v. Broughton, 54 Ga. 296 (1); Smith v. Camp, 84 Ga. 117, 10 S.E. 539 But it has also been applied to levies on real estate. Scolly v. Butler, 59 Ga. 849; Hollis v. Lamb, 114 Ga. 740, 742, 40 S.E. 751. In Osborne v. Rice, 107 Ga. 282, 283, 33 S.E. 54, it was said that the decisions on the subject do not seem to be altogether harmonious; and various cases were cited in support of the statement. ...
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Walden v. Walden
...57 S.E. 323128 Ga. 126WALDEN et al.v.WALDEN.Supreme Court of Georgia.April 12, 1907. 1. Mortgages — Validity — Description of Land. Where a mortgage described the land covered by it thus: "One tract or parcel of land lying in Jefferson county, Georgia, in the 79th district, G. M., containin......