88 Ga. 417 | Ga. | 1892
Judgment affirmed.
Oh February 18, 1888, EL J. Marshall made to Coleman, Ray & Co. a mortgage on three mules, and “ one horizontal mounted six-horse power Farquhar engine,” and “ one two-horse Webster wagon,” to secure his two obligations of the same date and due on October 15 and November 1, 1888, amounting to $498.25. This mortgage was “ signed, sealed and delivered in the presence of J, H. Ray; J. J. Flanders, N. P., Bibb Co., G-a.” It was recorded ten days after its date in Jones county, the county of Marshall’s residence. On December 17,1888, the deputy-sheriff of that county levied an execution issued from a judgment of April 18, 1888, in favor of Stewart et al. against H. J. Marshall et al., on “ one 5½
H. J. Marshall, for plaintiffs: There are Farquhar engines, and A. B. Farquhar & Co. engines. This engine is in one sense a 5 horse power, and it is also a 6 horse power. Power depends upon 3 things : number of revolutions, length of the stroke, and diameter of the cylinder. The mare and mule were sold by me for $225; that was a fair price for them ; and the money was credited on the fi. fa., and levy as to them stricken. The other mare in my possession now; she is worth $150. I may have said I would not take $250 for her, but was only talking. The wagon was worth at time of levy $10. I have had some repairs on it, and it is worth $25. I paid $50 on this debt in a bale of cotton. It sold for about $50 ; perhaps $48 is the correct sum. The mare and mule were levied on. This is an A. B. Farquhar & Co. engine, made at York, Penn. Has “ agricultural works ” on it. I owned no other engine at time I mortgaged it to plaintiffs, and I bought it from A. B. Farquhar & Co., agents in Macon, as a six-horse power Farquhar engine. Engines made by this firm are called Farquhar engine; the engine levied on was the only one I owned at the time.
S. B. Glawson, for claimants: Have an experience of 7
W. W. Barron, for claimants : Made the levy on mortgage fi. fa., and entered it as a 6 horse because in mortgage so stated. Measured engine at request of Judge Johnson, and by the rules in Farquhar’s pamphlet which I had at time; it was between a 5 and 6 horse power. I do not know of my own knowledge what power it is; measured it correctly by the book, and had a 2 foot rule with me; did not say on a former trial it was a 6 horse power engine; said I levied on it as such. I had the deputy-sheriff to make levy on Stewart fi. fa.; wrote the levy for him, and put it a 5i horse power because he said Marshall told him ’twas a 5-]-
cited 58 Ga. 383 55 Ga. 208; 54 Ga. 237, 462; 71 Ga. 497; 45 Ga. 213; 44 Ga. 656; 19 Ga. 537; 3 Ga. 460; 77 Ga. 365; Code,
The jury found the property subject. The claimants moved for a new trial on the following besides the general grounds:
1. Error in admitting the mortgage over objection that it was attested by an officer not having a seal, Elanders being only a commercial notary public, and not witnessing it with his seal of office.
2. Description of the mortgaged property insufficient, and claimant not put on notice by the record.
3. Refusal to charge that “ the mortgage cannot be ■ enforced for any more than is justly due upon it.” Claimants contend that the mortgage execution should have been credited by the amount paid by Marshall in the bale 'of cotton, and by the mare he testified to be worth $150, and by the wagon he testified to be worth $25, the mare and wagon being still in his possession.
The motion was overruled, and claimants excepted.
cited 75 Ga. 662; 58 Ga. 383; Code, §§1503, 1967, 3829.