McCalla v. American Freehold Land Mortg. Co.

• Decision Date: 01 August 1892
• Citation: 15 S.E. 687,90 Ga. 113
• Parties: MCCALLA et al. v. AMERICAN FREEHOLD LAND MORTGAGE CO.
• Court: Georgia Supreme Court

15 S.E. 687

90 Ga. 113

MCCALLA et al. v. AMERICAN FREEHOLD LAND MORTGAGE CO.

Supreme Court of Georgia

August 1, 1892

Syllabus by the Court.

1. When the court, by mistake, rules that the burden of proof is on the claimant instead of upon the plaintiff in execution, the mistake may be corrected on its discovery, even after all the evidence has been introduced; and it is not error then to hold that the burden of proof rests on the plaintiff, and for that reason to allow him to open and conclude the argument.

2. An entry of levy by the sheriff on an execution against an administrator, which declares that the land seized is levied on as the property of the intestate, does not import that the property is in the possession of the administrator, but only that it is property subject to be administrated by him.

3. A deed under seal conveying land, executed in the name of the ostensible makers, but not in their presence, by a person authorized by them verbally, is invalid, and will not pass the title except in favor of those who act upon it in a way to be prejudiced, should the authority to make it be repudiated. As to such persons, after they have parted with their money on the faith of the deed, the ostensible makers will be estopped from denying the authority of the person who, with their consent, subscribed their names to the instrument.

4. If a conveyance under seal be executed by a person without authority, written or verbal, no ratification of the same save one in writing and under seal, will be effectual in behalf of any person who has not acted upon the ratification in a way to make the law of estoppel applicable for his protection. Pollard v. Gibbs, 55 Ga. 45. A ratification by mere silence, after one has parted with his mere silence, after one has parted with his money on the faith of a forged deed, will not render the deed operative in favor of the person who has thus acted.

5. Where land has been conveyed to a creditor by absolute deed as security for a debt, he making a bond for titles, it is not subject to levy and sale on the judgment for the debt until it has been reconveyed to the debtor, as provided by section 1970 of the Code. In this case there was no evidence of such reconveyance.

Error from superior court, Harris, county; R. M. WILLIS, Judge.

Nancy McCalla and others interposed a claim to property levied on by the American Freehold Land Mortgage Company under execution against one...