Derrick v. Sams

• Decision Date: 04 May 1896
• Citation: 25 S.E. 509,98 Ga. 397
• Parties: DERRICK v. SAMS et al.
• Court: Georgia Supreme Court

25 S.E. 509

98 Ga. 397

DERRICK v. SAMS et al.

Supreme Court of Georgia

May 4, 1896

Syllabus by the Court.

1.Where land was described in a mortgage as parts of certain specified lots in a designated land district of a given county, "it being the land purchased by J. L. Henson from J. E. Derrick," the description, as a whole, was not so totally defective and uncertain as to render the mortgage inadmissible in evidence upon the trial of a rule for its foreclosure; and it was competent to identify by parol evidence the land covered by the mortgage.

2.That the land so covered had been set apart to the widow of the mortgagor as a year's support, over objections filed by the mortgagee, constituted no defense to the foreclosure of the mortgage.Upon a levy of the mortgage fi. fa. on the land in question, a very different question would arise.

3.In a mortgage foreclosure proceeding there was no error in refusing to strike so much of a plea filed by the administrator of the deceased mortgagor as alleged that the latter, at the time of executing the mortgage, "was very old and sick, and unable to sign his name, *** but made his mark; that he was heavily under the influence of opiates, and at the time was in a comatose state, *** and was wholly unable to make any sort of contract"; and also that the mortgagor was unable to read the contract, that it was never read over to nor understood by him, and that if the same had been read to him he could not have understood it.

Error from superior court, Rabun county; J. J. Kimsey, Judge.

Action by J. E. Derrick against A. B. Sams, administrator, and others.From a judgment for defendants, plaintiff brings error.Reversed.

R. E A. Hamby and W. S. Paris, for plaintiff in error.

W. T Crane, for defendants in error.

SIMMONS C.J.

1.Derrick sought to foreclose certain mortgages purporting to have been given by Sams, and the administrator of Sams filed a plea in resistance to the proceeding.On the trial of the casethe court, upon objection by counsel for the defendants excluded the mortgages on the ground that the description therein of the land mortgaged was insufficient, and refused to receive parol evidence offered to further identify the land.The description of the land was: "Parts of lots of land Nos. 22 and 38, in the 5th land district of Rabun county, Ga.; it being the land purchased by J. L. Henson of J. E. Derrick."We do not think this description, as a whole, was so totally defective and uncertain as to render the mortgage inadmissible in evidence.It is not essential that the description should completely identify the land.A description should not, as a matter of law, be treated as insufficient, if it furnishes the means of identification.The description above quoted does this.It gives the state county, and district in which the land is situated, and the numbers of the lots, and says that it is "the land...