140 Ga. 740 | Ga. | 1913
G-. A. Weaver Jr. foreclosed a chattel mortgage by making the statutory affidavit. The execution issued thereon was levied on the mortgaged property, consisting of two horses. The defendants filed an affidavit of illegality, which, as amended, made substantially the following points: (1) At the time of making the purchase of the two horses by the defendants from the plaintiff, it was agreed among the parties that if the defendants should desire
1. Both of the first two grounds of the illegality are fatally defective, for the reason that they seek to set up a parol contract made before or at the time of giving the mortgage, and by which it was sought to change its terms. There may have been other reasons which would render them demurrable, but this will suffice. It is not the purchaser from the mortgagors who is asserting title; but the mortgagors who are asserting title for him. The agreement set up was not one made after the mortgage was executed, as in Tucker v. Mann, 124 Ga. 1003 (53 S. E. 504), and Crenshaw v. Wilkes, 134 Ga. 684, 687 (68 S. E. 498), but before or contemporaneous therewith. The amount paid to the mortgagee is not stated, so as to make the plea one of partial payment.
• 2. Taking the pleading most strongly against the pleader, there was no positive and unqualified averment that no order was granted authorizing the sale by the sheriff; The affidavit of illegality did use the expression that the sheriff had no order to sell, but immediately thereafter it attacked the order which was granted, and which it referred to as "the pretended order,” as being illegal. It showed no reason, however, why it was illegal. Where a defendant fails to replevy personal property levied on under a mortgage fi. fa., it may be sold by special order of the court as in cases of perishable property, or property which is expensive to keep or liable to deteriorate from keeping. Civil Code, § 3301. The allegations in this ground are vague and consist almost entirely of conclusions rather than of facts. If it be taken for granted that by an amended affidavit of illegality the sale could be attacked and an accounting be had for the value of the horse purchased by the mortgagee, the one filed in this case was too. vague and indefinite in its character to raise an issue for submission to the jury.
The case of Haunson v. Nelms, 109 Ga. 802, which was cited by counsel for the plaintiff in error, arose on an equitable petition to set aside a sheriff’s sale, where the sheriff had first accepted an affidavit of illegality and agreed not to sell the property, but subsequently changed his mind and sold it in a manner which evidently worked an injustice and a hardship to the defendant. It differs in its facts from the present case.
Judgment affirmed.