Potts v. Reconstruction Finance Corporation

• Decision Date: 02 March 1948
• Docket Number: 31754.
• Citation: 47 S.E.2d 178,76 Ga.App. 796
• Parties: POTTS v. RECONSTRUCTION FINANCE CORPORATION.
• Court: Georgia Court of Appeals

47 S.E.2d 178

76 Ga.App. 796

POTTS v. RECONSTRUCTION FINANCE CORPORATION.

No. 31754.

Court of Appeals of Georgia, Division No. 2.

March 2, 1948

Rehearing Denied April 1, 1948.

Syllabus by the Court.

1. Where a statutory claim is filed to property levied on under an execution issued from the foreclosure of a bill of sale to personal property to secure a debt, and it appears that the defendant in such fi. fa. was in possession of the property at the date of the levy, and it nowise appears that the claimant has any right or title to the property, it is not error for the court on the motion of the claimant to overrule the motion to dismiss the levy on the ground that the description of the property as contained in the bill of sale to secure a debt is not sufficiently definite or specific.

2. 'The jury must take the whole charge as the law of the case.'

3. 'The jury can not be expected to select one part of a charge to the exclusion of another, nor to decide between conflicts therein, nor to determine whether one part cures a previous error, without having their attention specially called thereto, and being instructed accordingly.' Morrison v. Dickey, 119 Ga. 698(2), 46 S.E 863.

4. The court did not at any time in his charge specifically call the attention of the jury to the fact that it was intended to correct what had been said in the erroneous instructions here in question, and the general instructions elsewhere given were not so plain as to cure such pointed and explicit erroneous instructions.

5. At the trial of a claim case the claimant may attack the execution on any ground which could then be urged by the defendant in fi. fa. Ansley Company v. O'Byrne, 120 Ga. 618(1), 48 S.E. 228.

6. "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 * * *." Calhoun v Williamson, 189 Ga. 65, 66(3),

7. If the execution is not void but is regular and valid on its face when it is levied upon the mortgaged property and no counter-affidavit is filed but a claim is interposed, the claimant cannot upon the trial of the issue amend the claim by alleging that the mortgagor is not indebted to the mortgagee, nor will he be allowed to introduce testimony to show it. Collier v. Blake, 16 Ga.App. 382, 85 S.E. 354.

8. The other assignments of error are not meritorius. As the case will go back for a new trial, the sufficiency of the evidence to support the verdict will not be passed upon.

C. E. Hay, of Thomasville, for plaintiff in error.

E. G. Jackson, of Atlanta, for defendant in error.

MacINTYRE Presiding Judge.

This was a statutory claim case involving personal property only in which the plaintiff in error (herein referred to as claimant) was the claimant, the defendant in error (herein referred to as the plaintiff) was the plaintiff in fi. fa., and the claimant's husband, A. M. Potts, was the defendant in fi. fa. The plaintiff foreclosed its bill of sale and deed to secure a debt 'in the same manner as mortgages on personal property are now foreclosed' as provided in Code, § 67-1601.

1. Upon the call of the case for trial and the announcement of ready by counsel for both sides, the claimant filed a written motion to dismiss the levy in said case for want of sufficient description in said bill of sale and because the description in the entry of the levy did not follow the description in the bill of sale. Said motion to dismiss the levy was based upon the record in said case then and there before the court.

A copy of the deed and bill of sale to personalty, which was attached and made a part of the affidavit foreclosing the bill of sale, was a part of the record then and there before the court. It shows that A. M. Potts, T/A Buckhead Dairy, the grantor, conveyed to the Reconstruction Finance Corporation, the grantee, a described tract of land and numerous articles of personalty which were obviously a part of a dairy. Among such articles conveyed was 'all of borrower's dairy herd, consisting of not less than one hundred fifty (150) head of prime dairy cows.'

By virtue of such foreclosure the sheriff levied upon 'the following described property of defendant, to wit: Seventy three (73) head of dairy cattle located at Buckhead Dairy on the Moultrie-Sylvester highway in Colquitt County, Ga., including one (1) Jersey bull. Levied at defendant's dairy farm on Sylvester Road about 4 miles from Moultrie, Georgia, and left in possession of A. M. Potts * * *,' the defendant in fi. fa. The description corresponded in substance with that contained in the mortgage.

It is recited in the entry of levy that the defendant in fi. fa. was in possession of the property here in question at the Buckhead Dairy at the date of the levy. Thus, at this stage of the case the burden of proof was upon the claimant. There being at this stage no evidence introduced which disclosed that the claimant, the wife of the defendant in fi. fa., had been prejudiced by any lack of notice of the existence of the bill of sale by reason of the meager description, the claimant would be in no position to raise this point.

'In providing that a mortgage * * * shall specify the property on which it is to take effect, the law does not require such a description as will serve to identify the property without the aid of parol evidence.' Thomas Furniture Co. v. T. & C. Co., 120 Ga. 879, 48 S.E. 333.

'The words of description in a mortgage may be sufficient to create a lien, and yet be insufficient of themselves to impart notice of the lien which they create. Hence whether the description in a mortgage is sufficient or not very frequently depends upon whether the lien is being asserted against the mortgagor or some person who has notice, or whether it is being asserted against some innocent purchaser for value who has no notice other than such as the record of the instrument may have imparted.' Nussbaum v. Waterman & Co., 9 Ga.App. 56, 59, 70 S.E. 259, 260.

'As between the mortgagor and the mortgagee, parol evidence might be admitted to show the property to be the same as that mortgaged, but it is not admissible as against a bona fide purchaser; he stands upon the notice which the record of the mortgage charges him with; the parol evidence is not notice to him.' Stewart v. Jaques, 77 Ga. 365, 3 S.E. 283, 284, 4 Am.St.Rep. 86.

The bill of sale of the property here in question to secure the debt, as between the grantor and the grantee, was not void in that the description was not sufficient to identify the property. It might here be noted that the language in the bill of sale clearly indicates the purpose to cover all of the grantor's dairy herd at his Buckhead Dairy, including all bulls which were a part of the herd. Beaty v. Sears & Bennett, 132 Ga. 516, 64 S.E. 321; Biggers v. Webb, 58 Ga.App. 688, 199 S.E. 759; Veazie v. Somerby, 5 Allen 280, 87 Mass. 280, 285.

Until the claimant shows that she has some right about to be affected, which had not been done at the time of the overruling of the motion to dismiss the levy, she is in no position to question the sufficiency of the description for she would be merely busying herself in a matter with which she had no concern. Nussbaum v. Waterman & Co., supra, 9 Ga.App. 56, 61, 70 S.E. 259.

The judge did not err in overruling the claimant's motion to dismiss the levy for want of a sufficient description of the property in the bill of sale and because the description in the levy did not follow the description in the bill of sale.

2. In special ground one of the motions for new trial the defendant complains of the following excerpt of the charge: 'Gentlemen, I charge you that where a bill of sale to secure debt is foreclosed and a levy made thereunder upon the property described therein, and a claim is filed thereto by a claimant, proof by the plaintiff in fi. fa., or party foreclosing the bill of sale, that the title or possession was in the defendant in fi. fa. at either the date of the fi. fa., or since, proof of such possession in the defendant in fi. fa. makes out a prima facie case in favor of the plaintiff, and the burden of proof is shifted to claimant to show by a preponderance of evidence that the title to the property was in him.'

The claimant contends that the date in question should have been the date of the bill of sale and not the date of the fi. fa.

'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 possession 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.' Morris v. Winkles, 88 Ga. 717, 719, 15 S.E....