101 Ga. App. 192 | Ga. Ct. App. | 1960
1. “When an execution shall issue upon the foreclosure of a mortgage on personal property, as herein-before directed, the mortgagor or his special agent may file his affidavit of illegality to such execution, in which affidavit he may set up and avail himself of any defense which he might have set up, according to law, in an. ordinary suit upon the demand secured by the mortgage, and which goes to show that the amount claimed is not due.” Code § 67-801.
2. “The plea of non est factum is a denial of the execution of the instrument sued upon, and applies to notes and other instruments, as well as deeds, and applies only when the execution of the instrument is alleged to be the act of the party filing the plea, or adopted by him.” Code § 81-701.
3. “A plea of non est factum positively denying the execution of an instrument sued on casts the burden of proving the execution upon the plaintiff.” H. J. McGrath Co. v. Mobley, 78 Ga. App. 759, 765 (52 S. E. 2d 473), and cases cited. Cf. Supreme Kingdom, Inc. v. Fourth National Bank, 174 Ga. 779 (164 S. E. 204) as explained in Buena Vista Loan &c. Bank v. Stockdale, 59 Ga. App. 798, 802 (2 S. E. 2d 158).
4. Where plaintiff foreclosed its conditional-sale contract covering a certain home freezer, and execution issued and levy was made on the property and defendant in fi. fa. filed his affidavit of illegality alleging, among other things, that “the conditional-sale contract upon which said fi. fa. was issued in said case was never made, signed, nor executed by him, nor by any other person by him so authorized to do and the same is
Judgment affirmed.
