Osborne v. Rice

• Decision Date: 21 April 1899
• Citation: 33 S.E. 54,107 Ga. 281
• Parties: OSBORNE v. RICE.
• Court: Georgia Supreme Court

33 S.E. 54

107 Ga. 281

OSBORNE v. RICE.

Supreme Court of Georgia

April 21, 1899

Syllabus by the Court.

1. The description of the land intended to be mortgaged, and upon which the sheriff attempted to levy the mortgage execution was, both in the mortgage itself and in the execution, too uncertain to identify the premises.

2. As the mortgage relied on by the plaintiff in fi. fa. was void for uncertainty, and the claimant, whose title was derived through the mortgagor, had an undoubted right to attack the mortgage as void because of such uncertainty, the court erred in directing a verdict for the plaintiff.

Error from superior court, Hart county; S. Reese, Judge.

Action by Peter V. Rice against Robert M. Johnson, executor of Sarah A. Rice. Judgment for plaintiff. On the levy of execution Francis A. Osborne interposed a claim. Judgment for plaintiff, and claimant brings error. Reversed.

A. G McCurry, for plaintiff in error.

J. H. Skelton, J. N. Worley, and O. C. Brown, for defendant in error.

LUMPKIN P.J.

1. Upon a mortgage fi. fa. in favor of Peter V. Rice against Robert M. Johnson, executor of the estate of Sarah A. Rice defendant in execution, the sheriff made an entry purporting to show a levy upon land. A claim was interposed by Francis A. Osborne. On the trial of the issue thus formed the plaintiff tendered in evidence the mortgage upon which his execution was based, and also the execution itself, with the entry of levy thereon. These documents were objected to on the ground that neither the mortgage, nor the execution, nor the entry of levy sufficiently described the land sought to be subjected. The objection was overruled, and the papers were admitted. The description set forth in the mortgage was as follows: "All that tract or parcel of land situate, lying, and being in the county aforesaid, on the waters of South Beaverdam creek, adjoining lands of Peter Rice and Sarah A. Rice, to be run off the lower end of my tract of land, formerly owned by Robert Steel, containing ten acres; all of the remainder to be upland; in all, twenty acres, more or less." The mortgage execution undertook to describe the premises in substantially the same language. The entry of levy described the land sought to be seized as "one tract of land in 1113 Dist. G. M., of Hart Co., Ga., adjoining lands of P. V. Rice and Sarah Rice, to be run off of lower end of tract of land formerly owned by Robert Steel, containing (20) acres, ten bottom land, lying on South Beaverdam creek, & ten acres of upland." We are sure it would be impossible for the levying officer to locate the property either by the description contained in the mortgage or by that set forth in the execution. That he was in fact unable to identify the mortgaged premises is evidenced by the uncertainty and vagueness of his entry of levy. While this court has gone to a considerable length in holding descriptions of land in deeds, mortgages, and entries of levy sufficient when it appeared practicable to identify and locate the premises, we do not think it has ever gone to the extent of sanctioning as sufficient descriptions as loose and vague as those with which we are now dealing. It is indispensable in every case that the words employed in describing realty should be clear and distinct enough to enable a reasonably intelligent person to apply the description to the subject-matter. In the present instance we do not think even a most astute individual would be able to locate the property intended to be mortgaged. Certainly, the record of the mortgage now under consideration would not afford notice to any one of the premises upon which a lien was sought to be created. Our conclusion therefore is that the court erred in not rejecting the mortgage and the execution. Unquestionably, a claimant may, by a motion to dismiss the levy, take advantage of the fact that the judgment upon which the plaintiff in execution relies is a mere nullity, when this fact appears on the fact of the record of the pro ceedings upon which such judgment was rendered. Hines v. Kimball, 47 Ga. 588; Krutina v. Culpepper, 75 Ga. 602; Gazan v. Royce, 78 Ga. 512, 3 S.E. 753; Dixon v. Williams, 82 Ga. 108, 9 S.E. 468; Pulaski Co. v. Thompson, 83 Ga. 270, 9 S.E. 1065. Or, at his option, the claimant may urge his objection to the introduction in evidence of the record of such proceedings, or move to exclude the plaintiff's execution, if offered by itself, whenever it appears that the same is for any reason void, thus rendering it impossible for him to make out his case. Phillips v. Hyde, 45 Ga. 220; Williams v. Atwood, 52 Ga. 585; Freeman v. Binswanger, 57 Ga. 160; Bosworth V. Clark, 62 Ga. 286; Morton v. Gahona, 70 Ga. 569; Gazan v. Royce, just cited. As to whether or not one filing a claim is also at liberty to attack the entry of levy on the ground that it is void for uncertainty, the decisions of this court do not seem to be altogether harmonious. Cohen v. Broughton, 54 Ga. 296; Fambrough v. Amis, 58 Ga. 519; Oatis v. Brown, 59 Ga. 711; Scolly v. Butler, Id. 849; Zimmer v. Dansby, 65 Ga. 91; Crine v. Tifts, Id. 645; Gunn v. Jones, 67 Ga. 398; Pearce v. Renfroe, 68 Ga. 194; Hudspeth v. Scarborough, 69 Ga. 777; Smith v. Camp, 84 Ga. 117, 10 S.E. 539. Certain it is, however, that "a claimant has the right to show that the execution which is levied on the property claimed by him is void, or inoperative as a valid process." Smith v. Lockett, 73 Ga. 105, citing previous decisions. This is so irrespective of the question whether he is estopped from asserting that no lawful levy has been made, as was distinctly recognized in Pearce v. Renfroe, supra, wherein the rule was announced that "the interposition of a claim commits the claimant to the fact of the making of a levy, but not to the legality of the process under which it is made." Prior to the passage of the act of September 7, 1891 (Acts 1890-91, p. 76), while an execution which did not follow the judgment upon which it was founded might be "amended so as to conform" thereto, yet the law in terms provided that, "if such fi. fa. be levied at the time of the amendment, such levy must fall." Code 1882, § 3495. That act expressly repealed the clause last above quoted, and introduced in lieu thereof the provision that "such amendments shall in no manner affect the validity of the fieri facias, nor shall the levy of said fieri facias fall or...