121 Ga. 763 | Ga. | 1905
(After stating the foregoing facts.) The mortgage of 1895 described the property as in the deeds of 1848 and 1854. Neither of these deeds gave corners, courses, lines, or distances. One did not name the adjoining landowners, and the other gave the coterminous proprietors as they existed in 1848. Naturally in half a century there had been- great and radical changes in this regard. And while the descriptions in neither the deeds nor the mortgage were void, as ruled when the case was here before (119 Ga. 196), yet it was necessary to resort to extrinsic evidence to show that the land levied on was that described in the fi. fa. Whether this burden was carried in the first instance by the plaintiff, or whether it was rebutted by the claimant’s testimony, was a question for the jury. The inherent difficulties of the plaintiff’s case in this regard, — the change of coterminous proprietors, the destruction of buildings and fences, the obliteration of old lines, resulting from the lapse of time, were increased by the special obliteration due to the fact that' these two lots were included in a still larger tract of 1,143 acres held by the same person for more -than 40 years. While there was some evidence that the Bazemore and Emerson places were in possession of the mortgagor in 1895, that fact really added little to the description, because there was no evidence as to the extent of these places.
The plaintiff in fi. fa. contends that the petition filed in March, 1895, did not operate as notice by way of lis pendens when he took the mortgage in October, 1895, because of the insufficient
Nor was there any erfor excluding the testimony of the plaintiff that he had no actual knowledge of the suit when he took the mortgage. The very purpose of the rule of lis pendens is to-charge with notice in law where there is no notice in fact. • Civil Code, § 3936. There was evidence from which the jury could have found that George McKay was in possession of the mortgaged property.’ That itself was notice. The mortgagee therefore took subject to that notice as well as to the notice imparted by the suit. There is no contention that the decree rendered in that suit was not binding on the mortgagor and the mortgagee unless it was void for collusion. There was no evidence tending to show the existence of any fraud, except that the plaintiff contends that the decree putting the cost on the defendant indicates that there had been a settlement. But the verdict was generally for the defend.ant. It was an equity- case. The costs could therefore be taxed against either party. Civil Code, § 4850-. Even if it was improper, only George McKay could complain. Certainly the fact that he was required to pay the costs is not sufficient to avoid a decree otherwise in his favor.
The charge that the description of the land mentioned in the ■ pleadings must have been sufficient to put Johnson upon inquiry as to whether it included the Bazemore and Emerson places was not error against the plaintiff. The petition gave the outside boundaries of the 1,143 acres, and. was sufficient to identify the whole tract so as to operate as lis pendens. It was obviously necessary to resort to parol testimony to show that a part was
There was nothing requiring the grant of a new trial in the exclusion of evidence as to what others had stated to the witness about the line. It is extremely doubtful whether any of the land mortgaged could, under the evidence, have been so marked and identified as to enable it to be properly described by the levying officer in making conveyance as a result of the sheriff’s sale. Certainly the mortgage itself contained no such description. But at last the case is controlled by the facts, that'the petition of the mortgagor showed that the 1,143 acres was in possession of George McKay claiming title by reason of a certain contract and will; that George McKay filed his answer admitting the possession and asserting the title ; and that this petition and answer were filed months before the plaintiff took his mortgage. It further appears that the mortgaged property was a part of the 1,143 acres. There is no proof that the judgment finding that the. land belonged to George McKay was the result of fraud'or collusion. This judgment bound the mortgagor and the plaintiff, who was in privity with her. Considering the case as a whole, and irrespective of the other assignments of error which could not be controlling, the judgment is Affirmed.
