Mercer v. Nowell

• Decision Date: 14 June 1934
• Docket Number: 9961.
• Citation: 175 S.E. 12,179 Ga. 37
• Parties: MERCER v. NOWELL.
• Court: Georgia Supreme Court

175 S.E. 12

179 Ga. 37

MERCER v. NOWELL.

No. 9961.

Supreme Court of Georgia

June 14, 1934

Syllabus by the Court.

1. The informal way in which property is described in a petition is a defect which would be amendable before, and which would be cured by, a judgment in the case.

2. Where property involved in a suit is described, a lis pendens will be created where there is such general description of the character or status of the property, or such reference thereto, that upon inquiry the identity of the property involved in litigation can be ascertained.

3. Where suit on a note is brought against two defendants, and one files an answer but does not deny the amount of the note and the other defendant files no answer, a general verdict in favor of the plaintiff is a verdict for the amount sued for.

Error from Superior Court, Early County; C. W. Warrill, Judge.

Execution proceeding by W. L. Nowell, wherein J. A. Mercer was claimant. Judgment for plaintiff in execution, and claimant brings error.

Affirmed.

W. I Geer, of Colquitt, for plaintiff in error.

Lowrey Stone, of Blakely, for defendant in error.

HUTCHESON Justice.

W. L Nowell obtained judgment against J. J. Mercer and Mrs. Annie Mercer. Execution was duly issued thereon, and was levied on "the west half of the north half of lot of land No. 381 in the 26th land district of Early County, Georgia. A claim was interposed by J. A. Mercer, son of Mrs. Annie Mercer. The cause was submitted to the judge, without the intervention of a jury, on an agreed statement of facts, as follows:

(a) On November 13, 1920, W. L. Nowell executed and delivered to J. J. Mercer a deed conveying to the latter the north half of lot of land number three hundred eighty-one (381) in the 26th land district of Early County, Georgia, containing 125 acres, more or less; and thereupon the said Mercer went into possession of such land. The deed was filed for record in the office of the clerk of Early superior court on October 24th, 1924, and was recorded at page 74 of deed book 36. (b) On April 26, 1922, J. J. Mercer executed and delivered to his wife, Mrs. Annie Mercer (being the same person as Mrs. J. J. Mercer), a deed conveying to her the north half of said lot number 381 in 26th land district of Early County, said deed reciting a consideration of 'five dollars and natural love and affection.' This deed was filed for record in said clerk's office of superior court of Early County, Georgia, on April 27, 1922, and there recorded at page 575 of Deed Book 33. (c) On March 1, 1924, the said J. J. Mercer and Mrs. Annie Mercer made and delivered to W. L. Nowell their joint and several promissory note in the principal sum of $1080.60, due November 1, 1924, with interest at the rate of 8 per cent. per annum, and to secure its payment executed and delivered to said Nowell a mortgage on the northeast quarter of said lot No. 381. This mortgage was filed for record in said clerk's office on the 3rd day of April, 1924. (d) On March 18, 1930, said W. L. Nowell filed his petition in Early superior court against J. J. Mercer and Mrs. Annie Mercer as defendants, in which he prayed for a general judgment against said defendants on the $1080.60 note above described, that the deed from J. J. Mercer to Mrs. Annie Mercer above referred to be canceled; and for other relief. A copy of said petition, omitting exhibits, process, entry of filing and entry of service, is hereto attached as exhibit one. Process duly issued upon said petition, and the defendants were regularly served. Mrs. Annie Mercer appeared and filed an answer, a copy of which is hereto attached (omitting verification), marked exhibit two. The issues made by the petition and answer were duly tried at the October, 1931, term of said court, the jury returning the following verdict: 'We, the jury, find in favor of the plaintiff. This the 7th day of October,

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