85 Ga. 664 | Ga. | 1890
This was an action of trover brought by the defendants' in error against the plaintiff’ in error for the recovery of certain personal property. On the trial of the case the defendants in error, who were the plaintiffs in' the court below, relied upon a certain instrument in writing as showing sufficient title in them to authorize a recovery against the defendant. This instrument in writing was as follows :
*665 “Griffin, Ga., Feb. 13th, 1888.
“On the 15th Oct. next I promise to pay Osborn & Wolcott, or order, fifty-eight and 32/100 dollars, for value receivedif not paid when due, I agree to pay interest at the rate of 8 per cent, per annum until paid; and if collected by law, I agree to pay 10 per cent, as attorney’s fees,” etc.
This was signed by D. R. Hancock under his hand and seal. Thereto attached is the following writing:
“ Georgia, 1
“Spalding County.) For the better securing the payment of the above promissory note, bearing even date with these presents, I hereby bargain, sell and convey unto Osborn & Wolcott, their heirs and assigns, the following described property : one Tennessee one-horse wagon and harness ; also, one small bay mare mule about 10 years old named Beck. Titles of above mentioned property to remain in Osborn & Wolcott until the above note is paid in full. And 1 hereby warrant the title to the said property and convenant that I have the full right to convey it, and that the same is wholly unincumbered. Now should the undersigned well and truly pay said note according to the tenor and effect of the foregoing, then this conveyance to be void; else of full force. And the undersigned hereby specially waives and releases for himselt and family all homestead and exemption rights that he may have by virtue of the constitution and laws of Georgia in and to said property as against this note. And I hereby authorize the said Osborn & Wolcott to sell said property at public or private sale, and I agree to pay any unpaid balance. Witness my hand and seal, this 13th day of Feb., 1888.”
The above writing was signed by D. R. Hancock, and was duly recorded. The evidence shows that Johnson, the plaintiff in error, purchased the property embraced in the above writing from Mrs. Hancock after the execution of this conveyance; and it was shown by Mrs. Hancock that her husband had left the State, and that she was authorized to settle his debts. The court