Earnest v. Wife

• Decision Date: 28 February 1856
• Docket Number: No. 98.,98.
• Citation: 19 Ga. 537
• Parties: Lawrence W. Earnest, plaintiff in error. vs. Thos. T. Nappier and Wife, defendants.
• Court: Georgia Supreme Court

19 Ga. 537

Lawrence W. Earnest, plaintiff in error. vs. Thos. T. Nappier and Wife, defendants.

No. 98.

Supreme Court of the State of Georgia

FEBRUARY TERM, 1856.

Action on note, in Catoosa Superior Court. Tried before Judge Trippe, October Term, 1855.

This was an action against Nappier and wife, by Earnest on the following note:

By the 25th Dec. next, we promise to pay L. W. Earnest or bearer, Six Hundred Dollars, for value received, this 2d July, 1849.

E. W. KILGROW,

CELIA PRICE.

Credited by $118 82, raised from sale of mortgaged property, April 5, 1850. Also, by $25 25, July 7, 1850. Both amounts paid by the Sheriff.

E. W. Kilgrow was a party to the action, but not served. The plaintiff having introduced the note sued on, closed his case.

Defendants then introduced a mortgage on a quantity of personal property, made by Kilgrow and Mrs. Price, to secure said note, of even date therewith. This mortgage had been foreclosed and execution issued, on which were manyentries of levies, sales, &c., which, so far as they are material, will be noticed in the opinion of the Court. Defendant introduced evidence of an agreement between plaintiff and Mr. Nappier, to release the latter from all liability on this note for one hundred dollars; but there was some uncertainty in the testimony as to whether this agreement was before or after his marriage with Mrs. Price.

Plaintiff, in rebuttal, offered Dr. S. S. Bailey, to prove that a certain wagon and horses, included in said mortgage, levied on but not sold, were not the property of the mortgagers, but the property of the witness, who had bought them from Kilgrow before the mortgage. The witness was objected to as interested, and the objection was sustained and the witness excluded; and this decision is assigned as error.

The Court charged the Jury, that where the Sheriff had levied on property by virtue of the mortgage ft. fa, it was incumbent on the mortgagees to show the disposition of it, the possession of the Sheriff being their possession; that if the agreement between plaintiff and Nappier was made before Nappier's marriage, it was binding; if afterwards, it was void, as being without consideration.

The jury found for the plaintiff One Hundred Dollars; whereupon, the plaintiff moved for a new trial, on the grounds—of error in the Court in the exclusion of the testimony of Bailey, and in the charge to the Jury, that the mortgagee is bound to account for property levied on by the mortgage fi. fa.; and on the further ground, that the verdict was contrary to law and evidence, and that the Jury failed to find interest on the one hundred dollars that they found for the plaintiff.

The Court refused the new trial, and this decision is alleged as error.

Walker; Moore, for plaintiff in error.

Underwood; Shropshire, for defendants.

By the Court. —McDonald, J., delivering the opinion.

The plaintiff moved for a new trial, on six grounds stated in the motion. The Court refused the motion, and its decision is excepted to.

The first ground in the motion, is an alleged error of the Court in rejecting the evidence of Samuel S. Bailey, Before Bailey was tendered as a witness, the defendants had given in evidence an execution with the entries thereon, which had been issued on the foreclosure of a mortgage which had been read in evidence. On the execution there was a levy on a four horse road wagon, a bay horse and a sorrel horse; and immediaely under it was the following entry: "The above levy was dismissed on the ground of a prior purchaser claiming the property as levied on, " and signed by the plaintiff. The suit in this case is by the mortgagee against the mortgagors, for the recovery of the debt secured by the mortgage. The judgment, when rendered in this case. will have a lien on all the property of the defendants. In defence of the action, they may plead any payment which has been made to the plaintiff under process of law, on the foreclosure of the mortgage or otherwise. If, after the mortgage was given, the mortgagors sold any part of the mortgaged property, the mortgagee is not bound to pursue it, but may collect his debt from other property of the mortgagors. In this case, the evidence of the defendants shoved that the levy on the road wagon and two horses was dismissed, because a prior purchaser had claimed them. It is not clear, from the entry, whether the purchase was prior to the mortgage or prior to the levy only. But that is not material, as there is no contest with sureties or third persons. The entry accounts for the levy, and shows that the property was not applied to the mortgage debt. That it was the entry of the plaintiff, does not vary the case. The defendants offered it in evidence. The witness, Bailey, whose evidence was offerred, was the purchaser of the property, which had been re-lieved from the levy. His evidence, if given as proposed, could not have increased the verdict against the defendants, and was only corroborative of the proof already made by them.

If he had any interest in the case, however, it was against the party calling him; for if his property was subject to the incumbrance of the mortgage, it was his interest to diminish the mortgage debt whereas, the object with which he was offered, was to increase it. He ought to have been...