Morris v. Winkles

• Decision Date: 01 February 1892
• Citation: 15 S.E. 747,88 Ga. 717
• Parties: Morris v. WINKLES.
• Court: Georgia Supreme Court

15 S.E. 747

88 Ga. 717

Morris

v.WINKLES.

Supreme Court of Georgia.

Feb. 1, 1892.

Foreclosure of Mortgage—Intervention—Collateral Attack.

1. To make a prima facie case against the claimant in favor of the plaintiff in mortgage fi. fa., it is not sufficient to prove possession of the mortgaged property by the mortgagor at the time of the levy, but either possession or title in the mortgagor at the date of the mortgage must be shown.

2. Unless the claimant holds under the mortgagor, directly or indirectly, the judgment of foreclosure, regular and valid in all respects, is not open to attack at her instance on the ground that the mortgage foreclosed was not in fact the one that was executed.

(Syllabus by the Court.)

Error from superior court, Haralson county; C. G. Janes, Judge.

Claim by Serena Morris to certain land on a mortgage fi. fa. issued at the suit of S. J. Winkles. Judgment for plaintiff. Claimant brings error. Reversed.

Ivy F. Thompson and W. P. Robinson, for plaintiff in error.

J. M. Mcbride, for defendant in error.

Bleckley, C. J. 1. By statute, ordinary judgments have a lien from their date upon all property, real and personal, of the defendant, then owned or afterwards acquired. Where a levy is made under a judgment of that class, it suffices, therefore, to prove possession in the defendant at the time of the levy, or at any time subsequent to the rendition of the judgment, as a basis for presuming title to the property, and attachment of the judgment lien upon it. But the rule does not apply to mortgage executions. The lien is lodged in the mortgage, and not in the levy, execution, or judgment of foreclosure. Richards v. Myers, 63 Ga. 762. In order for the lien of the mortgage to attach upon the property, title must have been in the mortgagor when the mortgage was executed, or he must have had pos session then, so as to raise the presumption of title. Butt v. Maddox, 7 Ga. 495; Gunn v. Jones, 67 Ga. 398. It is not sufficient to prove possession in the mortgagor at the time of the levy. Nor would evidence that he returned the property for taxation in the year the mortgage was executed, and in the preceding year, amount to anything more than mere declarations of ownership by him. Smith v. Haire, 58 Ga. 446. To render his bare declarations of any value against the claimant, they would have to be made while he was in possession. Unless possession appeared in Ivey v. Colquitt, 63 Ga. 509, that case, in holding the tax returns admissible, is of doubtful correctness. But there was other evidence to support the verdict. So says the opinion. In this present case, there was no evidence whatever of any possession prior to the date of the levy. The date was September 30, 1886, long after the tax returns were made. The additional evidence relied upon to make out a prima facie case for the plaintiff was an alleged admission by the claimant (she being the mortgagor's wife) that her husband had told her he had made arrangements with the plaintiff for her to trade with the plaintiff at his stare, and was going to give a mortgage on the land now in controversy, telling her further that she and another person could trade with the plaintiff to the extent of $20 worth. To this admission was added the fact that she and the person named actually bought at that time about.$16 worth of goods, and afterwards $10 worth more. She testified that she never made the admission, and her husband testified that he never told her...