Emerson v. Knight

• Decision Date: 08 February 1908
• Citation: Emerson v. Knight, 130 Ga. 100, 60 S.E. 255 (Ga. 1908)
• Parties: EMERSON v. KNIGHT.
• Court: Georgia Supreme Court

60 S.E. 255

130 Ga. 100

EMERSON v. KNIGHT.

Supreme Court of Georgia

February 8, 1908

Syllabus by the Court.

Where a mortgage is given to indemnify one who becomes a surety upon a bond in which the mortgagor is principal, a misdescription of the particular bond may be corrected by parol testimony so as to identify the bond described in the mortgage with the one upon which the mortgagee became surety.And the mere misdescription of the bond will not have the effect to render the mortgage invalid as a lien upon the property described either as to the mortgagor himself or his vendees.

[Ed Note.-For cases in point, seeCent. Dig. vol. 20, Evidence§§ 2115-2128.]

The mortgage having been foreclosed and a fi. fa. issued upon the judgment of foreclosure, neither the judgment of foreclosure nor the fi. fa. was void because of mere irregularities in the foreclosure proceedings, nor because of defects therein which could have been amended, had they been attacked by a timely special demurrer.

The evidence demanded the verdict which the court directed.

Error from Superior Court, Bibb County; W. H. Felton, Jr., Judge.

Action by R. L. Knight, for the use of Leona Mathews and another against N. G. Emerson.Judgment for plaintiff.Defendant brings error.Affirmed.

Nottingham McClelland, for plaintiff in error.

W. J. Grace and R. L. Anderson, for defendant in error.

BECK J.

1.The court below did not err in directing the verdict complained of in the motion for a new trial, and upon the direction of which error is assigned in the bill of exceptions.There was no issue of fact to submit to the jury.The mortgage upon which the fi. fa. was issued, as against which the claim was interposed, was a good and valid mortgage against the mortgagor.The essentials of a mortgage are prescribed in Civ. Code 1895, § 2724, as follows: "It must clearly indicate the creation of a lien, specify the debt to secure which it is given, and the property upon which it is to take effect."There is no question in this case but that the property mortgaged was sufficiently described.The instrument clearly indicates the creation of a lien, and the contention that it was not valid, so as to indemnify the mortgagee against loss that might accrue to him as a surety upon the bond of his principal, must rest entirely upon the ground that it does not specify the debt to secure which it was given.This ground, however, is not tenable in the light of authority and the uncontroverted evidence in this case.The obligation to secure which the mortgage was given was one springing out of a contract to indemnify and save harmless the mortgagee on account of his having become surety on a bond in which the mortgagor was principal.The failure of the principal, the mortgagor, to save harmless the mortgagee, created the obligation, and the injury and loss resulting to the mortgagee because of his having become surety upon the bond was the measure of the amount of the debt.Conceding that the statement in the mortgage of the particular kind of bond upon which the mortgagee became surety was a part of the description of the obligation, and that the bond upon which he became surety was one given by the mortgagor as administrator, and not as trustee, such a misdescription would not have the effect of invalidating the mortgage in all other respects valid."No formal and exact description of the debt is essential, provided there is a debt between the parties capable of being enforced against the mortgagor or the property mortgaged.Literal exactness is not required."1 Pingrey on Mortgages, 485."A promissory note agreeing in many respects with the one described in the mortgage deed, though variant therefrom in some of its particulars, may be proved by parol evidence to be the note intended to be described in the mortgage.This is founded upon the principal that a thing is to be regarded as certain which can be made certain, and parol evidence can be adduced to apply the contract to its subject; that, where there is enough to put those concerned upon inquiry, the means of knowledge and knowledge itself are in legal effect the same.Parol evidence may be admitted to show that Ebenezer Hall 3d means Ebenezer Hall, and that a note was dated several months before."Id. 497."Clerical inaccuracies in the description of a debt will not affect the lien of a mortgage against the mortgagor or subsequent judgment creditor of his, provided the debt is clearly identified as the one intended to be secured.*** Parol evidence is admissible to show that the note described in the mortgage is the one produced in evidence.Thus, where a note secured by a mortgage is, in some particulars, misdescribed, it may be shown by parol evidence that it is the one intended to be described."Id. 495, 496."Parol evidence is admissible to identify the note, and show that the note produced is the one referred to in the mortgage.*** In general, it may be...