Hicks v. Walker Bros.

31 Ga. App. 395 | Ga. Ct. App. | 1923

Bebe, J.

1. In providing tnat a mortgage shall specify the property on which it is to taice effect, the law does not require such a description as will ’serve to identify the property without the aid of parol evidence. Thomas Furniture Co. v. T. & C. Co., 120 Ga. 879 (48 S. E. 333); Nussbaum v. Waterman, 9 Ga. App. 56 (2) (70 S. E. 259).

2. Where a fi. fa. is issued upon the foreclosure of a duly attested and properly recorded mortgage on a motor-veliicre, described as “One 1 y2 ton Kissel truck,” and a claim to the property is interposed by one who has subsequently purchased direotly [rom the mortgagor, and especially where it is inferable from the evidence that the mortgagor had but one such truck, it is error in the trial of the claim case to exclude the mortgage from evidence, upon the ground that the record, by reason of the indefinite description of the property, is insufficient to put the purchaser upon notice or inquiry. Lamar v. Coleman, 88 Ga. 417 (2) (14 S. E. 608); Beaty v. Sears, 132 Ga. 516 (1) (64 S. E. 321); Nichols v. Hampton, 46 Ga. 253 (3); Farkas v. Duncan, 94 Ga. 27 (20 S. E. 267); Kiser v. Carrollton Co., 96 Ga. 760 (22 S. E. 303); Thomas Furniture Co. v. T. & C. Co., supra; Reeves v. Allgood, 133 Ga. 835 (3) (67 S. E. 82); Reynolds v. Jones, 7 Ga. App. 123 (66 S. E. 395) Nussbaum v. Waterman, supra; First National Bank v. Spicer, 10 Ga. App. 503 (1) (73 S. E. 753).

(a) This decision, if in conflict with anything ruled in Milner Banking Co. v. Adair, 18 Ga. App. 575 (90 S. E. 170), is controlled by the Supreme Court decisions and the earlier decisions of this court above cited. It is clearly distinguishable from Ellis v. Lynch, 28 Ga. App. 529 (1) (112 S. E. 151), in which it is disclosed by the record that the defendant did not purchase from the vendee in the conditional sale, but acquired the property after two other transfers.

Decided December 10, 1923. B. B. Jackson, John F. Fchols, for plaintiff. D. E. Johnston, contra.

(6) In the case at bar there were four major descriptive elements: (1) a motor-vehicle, (2) a truck, (3) Kissel make, (4) size or capacity. Compare Beaty v. Sears, 132 Ga. 516 (64 S. E. 321); Reeves v. Allgood, 133 Ga. 835 (67 S. E. 82). Where, in addition, the inference was warranted, from the evidence, that the mortgagor had but one such truck, the mortgage was admissible in evidence upon the trial of the claim filed by one purchasing directly from the mortgagor.

3. In view of the above, the judge of the superior court should have sustained the certiorari instituted by the plaintiff in the mortgage fi. fa. to the judgment of the municipal court in favor of the claimant.

Judgment reveised.

Jenldns, P. J., and Stephens, J., concur.