119 Ga. 196 | Ga. | 1903
On October 1, 1895, Mrs. Julia McKay executed to J. C. Johnson a mortgage upon land described as follows: “ All that tract of land in Jones county, Georgia, ■ containing one hundred and fifty-three (153) acres, known as the Zaehariah Emerson place,, part of lots No. one hundred and twenty-five (125) in the eleventh (11) district, one part No. not known.” Also: “The Thomas Bazemore place, containing one hundred and ninety-six (196) acres, more or less, joining the lands of Sarah Emerson, Elisha Owens, Madison T. Bazemore, and H. D. McKay.” The mortgage was foreclosed and the execution was levied. The execution followed the description in the mortg'age. H. A. McKay, as executor of the will of George W. E. McKay, interposed a claim to the property, and at the trial the property was found subject.' The presiding judge, Hon. F. C. Foster, granted a motion for a new trial, filed by the claimant. At the second trial the property was again found subject, and another new trial was granted the claimant by Hon. H. G. Lewis, who presided at the trial, upon a motion which contained the grounds that the verdict was contrary to law and the evidence, and also certain special grounds. At both trials’ the claimant introduced in evidence the record of a suit for land, and of the decree therein, brought by Mrs. Julia McKay against George W. E. McKay, in which title to certain land was decreed to be in the defendant in the suit. It is claimed that this decree covered the land now in controversy. The order of Judge Lewis' granting a new trial was as follows : “ It is ordered
As the case is to be tried again, we deem it proper to state our views with reference to the decree rendered in the suit of Julia McKay v. G. W. F. McKay. The suit was filed March 25, 1895 ; the mortgage was executed on October 1, 1895; and the decree was rendered October 19, 1896. If the doctrine of lis pendens was applicable, Johnson, the mortgagee, was bound simply by the description of the property in the declaration, and if that did not embrace the property mortgaged, he would be protected, without regard to whether the decree described the property or not, and without regard to whether the decree would be void because covering property not described in the declaration. As stated above, the evidence shows that H. D. McKay acquired the Bazemore place by deed executed in 1848, and the Emerson place by deed made in 1854. The declaration describes the land sued for as 1143 acres adjoining the lands of certain parties, and lying on the waters of Town creek, and obtained by H. D. McKay “in the year 1856, under an agreement made between his mother, Sarah McKay, and the defendant Geo. W. F. McKay and himself.” The agreement referred to was in evidence, and in that the land obtained thereunder by H. D. McKay was described as set out in the declaration. This land may or may not have embraced the Emerson and Bazemore tracts. There was a survey of the lands supposed to have been included in the suit against G. W. F. McKay by Julia McKay, and this survey seems to embrace the two tracts in controversy. A witness for the claimant testified positively that the two tracts were involved in the suit, though the witness admitted that he was not acquainted with the inside lines of the tracts. If these two tracts were embraced in the agreement and involved in the suit, this could be explained only on the hypothesis that the tracts were bought for H. D. McKay in 1848 and 1854, and afterwards by consent of all parties included in the agreement between the two McKay sons and their mother. In view, however, of the uncertainty whether these two tracts were involved in the suit and the agreement, and also of the uncertainty whether the two tracts were sufficiently identified, we will
Judgment affirmed.