Oatis v. Brown

• Decision Date: 31 August 1877
• Citation: 59 Ga. 711
• Parties: Mary A. Oatis, plaintiff in error. v. Mary M. Brown,defendant in error.
• Court: Georgia Supreme Court

59 Ga. 711

Mary A. Oatis, plaintiff in error. v. Mary M. Brown, defendant in error.

Supreme Court of the State of Georgia

(August Term, 1877.)

Levy and sale.Partnership.Service.Judgments.Waiver.Debtor and creditor.Evidence.Res gestae Witness.Juror.Verdict.New trial.Before Judge Kiddoo.Quitman Superior Court.May Term, 1877.

Reported in the opinion.

B. S. Worrill; J. L. Wimberly; J. T. Flewellen, for plaintiff in error.

*Guerry & Son; A. Hood; J. H. Guerry, for defendant.

BLECKLEY, Judge.

The claimant is the mother of the defendant in fi. fa.Her title; oriented thus: The son purchased the premises in 1860, built a house and went into possession, his father and mother with him, he being a single man, and his object being to provide a home for His parents.Title was corn eyed to him in 1863, in pursuance of his purchase.On the 10th of December, 1867, he executed a mortgage upon the property to one Lawson, to secure a note for over two thousand dol1als, on which one thousand dollars bad been paid.In this note he was principal, and there were two securities.The payee was one Pinkston, and Lawson held by transfer.The note was given for borrowed money.

On the second of March, 1869, the premises were sold by the United States marshal, on a general judgment from the circuit court(the date of which does not appear) in favor of a third person against the mortgager, and was purchased by the mortgagee, Lawson, at the price of forty-five dollars.The marshal made a deed accordingly.Before this sale took place, Oatis and Dawson (mortgagor and mortgagee) had a conference, in which it seems to have been understood that Lawson was to make the purchase, and that any of the Oatis family were to be allowed to redeem on refunding the purchase money, with certain expenses, and paying off the mortgage.Shortly after the sale, Lawson visited the premises, and arranged with the father or mother of Oatis to remain in possession as his ten ant.There was no agreement for rent, and no rent was ever paid.The father died in 1871, and the mother continued to reside on the place.On the 18th of December, 1872, Lawson conveyed the premises to her by deed, the consideration expressed being $1,618.00.This was done at the instance of a brother of Oatis, and the brother, according to his own evidence and that of Oatis; paid to Lawson all ofthe money, except about twenty dollars, which latter *sum another person advanced, at the request of Oatis, and it was subsequently refunded out of rents which accrued from the property in 1873, while Oatis was renting it out professedly as agent for his mother.According to the evidence of Lawson, the greater part of the money was paid by the brother, some by another brother, and a small balance by this third person, at the request of Oatis.The note and mortgage were surrendered, and by some means came into the hands of Oatis, who seems to have lost or destroyed them.The claimant removed from the premises to Alabama, in 1873, after which event, Oatis rented out the property for her benefit.Until about the time she removed, he appears to have resided on the property and in the family, except that at intervals he was absent engaged in teaching school, a part of the time in Alabama and a part of the time in Stewart county.He still called the place home, and was then; frequently, though as he testified, he never considered himself in possession after the purchase by Lawson at marshal\'s salt.Much of the evidence tends to show that there was no substantial change in the possession from the time the house was built until 1873, except in so far as a change may have resulted from the verbal recognition, by one or both of the parents of Ostis, of Lawson as landlord.The final removal of Oatis to Alabama was in 1873, the same year in which his mother removed.His father and mother were without means of their own, and in 1869 Oatis was forced into involuntary bankruptcy.The theory of the plaintiff in fi. fa. is, that the money borrowed of Pinkston, for which the note secured by the mortgage to Lawson was given, was borrowed by Oatis for the benefit of his brother, ana was so used; that thus the mortgage debt was really the brother\'s debt: and that, hence, when the land was redeemed by the brother, even if the money used belonged to him, it was but the discharge of his own debt, and the land again became theproperty of Oatis, the deed being taken to the mother as a fraudulent cover to hide and *protect the property from his creditors.Fraud or no fraud was thus the main issue.

The plaintiff's fi. fa. originated thus: On the 29th of May, 1867, a partnership, composed of three members (one of whomwas the defendant, Oatis,) and a fourth person, made a promissory note tor $3,060 00, due one month after date, payable to the plaintiff.Upon this note suit was commenced in April, 1869, returnable to the next May term of the superior court.The sheriff made a return of service upon one of the partners and upon the fourth person, and a return of non est inventus as to another of the partners.As to the defendant, Oatis, he made no return whatever.On the 6th of December, 1869, Oatis signed an acknowledgment on the declaration in these terms: "I hereby acknowledge myself to have been duly and legally served with the within process, and waive all copies and previous entry of service, consenting that this case stand for trial at this, November adjourned term, 1869."Judgment was rendered at May term, 1872, against the partner served, and the defendant, Oatis, as principals, and against the executors of the fourth person (he having died), as security, for $2,598 50 principal debt, $798.29 for inter st, with cost of suit.On this judgment, the fi. fa. issued against all the defendants named therein.In 1873, the levy now in question was made.The property is described in the levy as \'\'one house and lot in the town of Georgetown, known as the Oatis place, " with no specification of the number of acres, the metes and bounds of the rot, or the street upon which it is situated.

1.At the trial of the claim, the claimant moved to dismiss the levy "because it did not sufficiently describe the property, in this: that it simply described the property as one house and lot in Georgetown, known as the Oatis place, without specifying the number of acres levied on, the metes and bounds of said lot, and upon what street it was situated."

The court overruled the motion.Whether the levy may not be defective in other respects, we need not decide.The *objection made to it was specific and particular.With that only did the court below deal, and with that only do we deal.The law prescribes no special terms to be employed in description.The property is to be "plainly described."Code, § 3640.We do not think a court can hold, as matter of law, that "one house and lot in Georgetown, known as the Oatis place, " is not a plain description.The premises might be so well known in the neighborhood as the "Oatis place, " as to need no further designation.Such a question is for the jury, as was ruled in 12 Ga., 441, where the point, it is true, was not upon the levy but upon the sheriff's advertisement.The principle, however, is the same.Code, § 3647.Besides, the claimant was too late with such an objection to be heard with...