136 Ga. 254 | Ga. | 1911
1. The approved brief of evidence which was1 considered on the hearing of the motion for a new trial constituted a part of the record in-the case, although not filed, after the .hearing and judgment on the motion within the time prescribed by the judge’s order, but before the bill of exceptions was sued out. Mitchell v. Masury, 132 Ga. 360 (64 S. E. 275).
2. Where C. purchased four mules on credit, and, being unable to pay for them, agreed with H. that if the latter would pay the purchase-price, together with the purchase-price of four other mules which C. desired
3. A mortgage on -ten described mules, which contained a recital, following the description, “This mortgage and note is given for the purchase-money of the above last-described mules,” referred to all the- mules described in the mortgage, and, so construed, sufficiently complied with the provisions of the act of August 17, 1903 (Acts 1903, p. 76), requiring that a purchase-money mortgage on personalty, in order to be superior to a year’s support in such property, shall expressly state that the mortgage was. executed and delivered for the purpose of securing the debt for such purchase-money.
4. Where a bill to marshal assets was filed by the administrator of the mortgagor, and there were conflicting claims in regard to the mortgaged property, the widow claiming under a judgment for a year’s support, the mortgagee claiming under the mortgagee, and a third person claiming to be the owner of two of the mules covered by the mortgage, and one question in controversy was whether in fact the mortgage was given for the purchase-money of the mules, as recited, it was competent for the mortgagee to introduce evidence to show that in fact the secured debt was for the purchase-money of eight of the ten mules.
(a) In such a case the .mortgage creditor was a competent witness as against the widow to testify in regard to transactions between himself and the intestate, touching things material to the issue on trial, it appearing from recitals in the bill of exceptions that all other issues had been adjusted and settled except those between'the widow, the mortgagee, and the claimant, and these being segregated by consent, the estate not being interested in the result, and no objection to the competency of the witness being made on behalf of the administrator, but such objection being made only on behalf of the widow. Gunn v. Pettygrew, 93 Ga. 327 (20 S. E. 328); Civil Code (1910), § 5858.
5. According to the decision rendered in the case of Smith v. Bohler, 72 Ga. 546, and followed in the case of Morris v. State, 117 Ga. 1 (43 S. E. 368), the act of 1903, referred to in the preceding notes, was not violative of the provisions of art. 3, sec. 7, par. 8, of the constitution of the State of Georgia, which provides that “No law or ordinance shall pass which . . contains matter different from what is expressed in the title thereof.”
6. The uncontradicted evidence demanded a verdict that the lien of Hall, the mortgagee, on the eight mules'for their purchase-money was superior to the lien of the judgment in favor of the widow for a year’s support; and the court did not err in directing such a verdict.
7. On another issue between the widow and ,W. T. G. Cobb, who claimed title absolutely to the first two mules mentioned in the mortgage, based on the contention that they were never the property of the intes