54 Ga. 137 | Ga. | 1875
This was a proceeding in the court below on the foreclosure of a crop lien by the plaintiff against the defendant, Beard. The plaintiff made his affidavit of foreclosure, and the defendant filed his counter-affidavit. When the case came on to be heard, the defendant made a motion to dismiss the plaintiffs proceedings in the case, on the ground that no sufficient demand was averred in the affidavit of foreclosure, which motion was sustained by the court, and the plaintiff excepted. It appears from the record that the plaintiff alleged in his affidavit “that said sum so secured by lien became due 1st of November, 1873; that payment of the same has been demanded, and neglected, and refused, and that he now comes within one year after the same became due, and makes his affidavit,” etc. The 1991st section of the Code, providing for the foreclosure of liens of this description on personal property, declares that “ there must be a demand on the owner, agent, or lessee of the property, for payment, and a refusal .to pay, and such demand and refusal must be averred.” Before this summary proceeding can be had against the property of the defendant, the plaintiff must make a demand on him as the owner thereof, his agent, or lessee, for payment of the debt claimed to be due, and the plaintiff must aver that fact in his affidavit, and that the defendant has refused to pay it. The demand for payment of the debt claimed to be due, on the owner of the property and his refusal to pay it, is the only notice which the statute requires before his property is seized and advertised for sale in satisfaction thereof, and therefore
Let-the judgment of the court below be affirmed.