Smith v. Camp
| Decision Date | 13 December 1889 |
| Citation | 10 S.E. 539,84 Ga. 117 |
| Parties | SMITH v. CAMP. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. A mortgage on personalty is valid between the parties irrespective of any defects in the attestation or probate its execution and delivery being duly proved at the trial.
2. Variance of the levy from the mortgage, in describing the property, will not render the levy illegal, where both descriptions are fairly applicable to the property.
3. The evidence as to the payment or non-payment of the debt in controversy being conflicting, the verdict settles the question.
4. To confirm other testimony that certain payments were in fact applied to an account between the parties, the account itself, with the credits entered therein, is competent evidence.
5. Two verdicts rendered by the same jury, in the same case appearing, one of them incorrect, the other correct, the presumption is that the latter was substituted by the jury for the former.
6. That the verdict in a justice's court was written and signed upon another paper, when it ought to have been upon the affidavit of illegality, is a mere irregularity, and will not vitiate the trial.
7. A defendant in fi. fa., who has recited a levy, both in his affidavit of illegality and the bond given for the forthcoming of the property, will not be heard to controvert the fact of such levy at the trial of the affidavit of illegality.
8. That, pending the case made by the affidavit, the execution was withdrawn and levied upon other property, will not render the former levy illegal.
Error from superior court, Gordon county; MILNER, Judge.
O. N. Starr, for plaintiff in error.
W. J. Cantrell & Son and T. C. Milner, for defendant in error.
1. That the mortgage was not duly probated, so as to prepare it for admission to record, was no objection to its validity as between the parties. It had two subscribing witnesses, and one of them proved, by his testimony given at the trial, the execution and delivery of the mortgage. Being thus proved, it matters not how defectively it was attested. Gardner v. Moore, 51 Ga. 268; Nichols v. Hampton, 46 Ga. 253; Marable v. Mayer, 78 Ga. 60.
2. The variance in the description of the property, as set forth in the mortgage and the levy, was not a good ground of illegality to the fi. fa. The description in the mortgage was, "one speckled yoke of oxen, both named Dave, about eight years old." That given in the levy was, "one yoke of oxen, red speckled sided, about nine years old." Both of these descriptions could well be applied to the same oxen. They were about one year older when the levy was made than when the mortgage was executed, and, though it does not state in the levy that both were named Dave, that omission is certainly not material.
3. The only remaining ground of illegality alleged in the affidavit is payment of the mortgage debt, and upon that the evidence was conflicting, and the jury settled the conflict by its finding. We do not see that they made any mistake.
4. It is complained that an account in favor of the mortgagees against the mortgagor was improperly admitted in evidence because irrelevant. It was, however,...
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