Frick v. Taylor

• Decision Date: 14 August 1894
• Citation: 21 S.E. 713,94 Ga. 683
• Parties: FRICK et al. v. TAYLOR.
• Court: Georgia Supreme Court

21 S.E. 713

94 Ga. 683

FRICK et al.

v.TAYLOR.

Supreme Court of Georgia.

Aug. 14, 1894.

Trusts—Deed without Consideration — Mortgage Lien—Priority—Claim of Third Person—Evidence.

1. One who, by fraud and deception and without paying or promising any consideration therefor, obtains from an illiterate person a conveyance of land, the latter thinking he was conveying personal property, holds the title, not for himself, but as trustee; and a subsequent mortgagee, to whom he mortgages the land as security for a pre-existing debt takes in subordination to the trust, whether he had notice of the fraud or not.

2. On the trial of a claim case the claimant, without other pleading than the ordinary issue in claim cases, may give in evidence the fraud to defeat the enforcement of the mortgage fi. fa., and maintain his equitable title to the premises, although the deed procured from him by the mortgagor is still outstanding, and the jury may find the property not subject by reason of the perpetration of the fraud.

3. A joint note given by two persons for the rent of land, not otherwise described than as "on Buck creek, " is not admissible in evidence to show that one of the makers severally was the payee's tenant of the lands now in controversy, it not appearing that these lands were on Buck creek, or where the Buck creek land was situate.

4. The evidence warranted the verdict and there was no error in denying a new trial.

(Syllabus by the Court.)

Error from superior court, Macon county; C. C. Smith, Judge.

To property levied on under execution in favor of the Frick Company against C. A. Taylor, John Taylor interposed a claim. There was a judgment for claimant and plaintiffs bring error. Affirmed.

The following is the official report:

A mortgage fi. fa. in favor of Frick Company against C. A. Taylor and north half of lot number 191 and lot 194, in the Second district of Macon county, was levied on said land. A claim was interposed by John Taylor to the north half of lot 191, and 50 acres off the north side of lot 194. The property was found not subject. Plaintiffs moved for a new trial, which motion being overruled, they excepted. The motion contained the general grounds that the verdict was contrary to law, evidence, etc., and because the verdict was contrary to the entire charge. Further, because the jury erred in not finding the property subject, as, after the evidence had all been submitted, argument had.and pending the charge of the court, claimant's counsel withdrew the issue of forgery made on the deed from John Taylor to C. A. Taylor, dated February 29, 1876, to the north half of lot 191, and one-fourth of lot 194, and, there being no plea of fraud before the jury, the jury should have found the property subject The mortgage in question was dated January 23, 1889. Error in refusing to admit evidence offered by plaintiff, to wit, the original suit of Malsby & Avera against John Taylor and Bob Cooke, with the entry thereon of personal service on Taylor, the original judgment on said suit, and the note on which the suit was founded. This suit alleged that Taylor and Cooke were indebted to Malsby & Avera for four bales of middling lint cotton, each weighing 500 pounds, worth $160, on a note given for rent of land, dated March 3, 1891, payable to C. A. Taylor or bearer, and due October 1, 1891. A copy of the note was attached. Its contents are sufficiently stated above, except, as stated therein, that it was given for land on Buck creek. There was personal service on defendants, and judgment by the court in favor of plaintiffs. The evidence on the trial of the claim case, as to whether claimant had rented the land in question from defendant in execution, was conflicting. Error in charging: "A bona...