Gunn v. Jones

• Decision Date: 30 September 1881
• Citation: 67 Ga. 398
• Parties: Gunn . vs. Jones, president.
• Court: Georgia Supreme Court

67 Ga. 398

Gunn . vs. Jones, president.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1881.

Executions. Judgments. Mortgage. Evidence. Claim. Title. Before Judge Wright. Calhoun Superior Court. September Adjourned Term, 1880.

The facts are stated in the head-notes and decision.

J.J. Beck; Kennon & Hood, by brief, for plaintiff in error.

C. B. Wooten, for defendant.

Crawford, Justice.

A mortgage fi. fa. in favor of J. E. Jones, president, etc., was levied upon 485 acres of land as the property of W. A. Hatcher. John M. Gunn filed a claim to lot No. 8 as being a part of the land upon which the levy was made.

Upon the trial of the claim the jury found the land subject to the fi. fa.

Gunn made a motion for a new trial which was refused, and he assigned that refusal as error.

The grounds of the motion which are necessary to be stated here are—

(1.) Because the court refused to quash the fi. fa. for insufficient description of the land levied upon, or to dismiss the levy because the same was not sufficiently certain to identify it.

(2.) Because the court admitted the mortgage as evidence, the same being transferred and attested by only one witness, and not under seal.

(3.) Because the draft for $1029.85 was permitted to go in evidence, though it bore date February 2d, 1872, and the mortgage was to secure a draft for $789.60, dated February 24th, 1871.

(4.) Because the court erred in charging the jury that the plaintiff might show that the property was defendant's by showing paper title at the time of the mortgage, or at any time subsequent to the rendition of the judgment, or before the levy, or at the time. The law presumes title If possession is shown in defendant in fi. fa. at any time after the date of the mortgage, or at the time of the levy, or at any time between the date of the mortgage and levy.

1. The first question made in these grounds for our decision is as to the description of the property in the fi.fa. and in the levy.

The fi. fa. commands the sheriff—" That of the plantation containing 485 acres, more or less, situated near Whitney in said county, the property of W. A. Hatcherdescribed and conveyed in a certain indenture of mortgage, etc., you cause to be made, " etc. The levy follows the description in the fi. fa., inserting "in fourth district of Calhoun county, " in place of the words "in said county."

We think that the fi. fa. should have followed the mortgage itself, and described the property as it is presumed to have been described in the judgment of foreclosure. It does not follow the mortgage in the description, but whether it follows the judgment of foreclosure we have no means of knowing, as it does not appear in the record.

The levy does not any more clearly show what plantation was levied on than the fi. fa except that it locates it in the fourth district of Calhoun county, and the judgment in the claim case is against land in the third district of Calhoun county. We hold that the description in each of these papers is imperfect, taken in the light of that description contained...