97 Ga. 199 | Ga. | 1895
1. Where a debtor executed to two creditors separate mortgages to secure debts due to them respectively, and it appears that, in procuring the credit to secure which the last mortgage was executed, he represented to the mortgagee that the property mortgaged was unincumbered, such misrepresentation cannot he made the basis of a prosecution for cheating and swindling under section 4587 of the code, unless it he shown that, in consequence thereof, the second mortgagee has been in fact defrauded, and that in extending the credit upon the faith of such misrepresentation, he has sustained a loss.
'2. In such a case, the burden is upon the State, not only to establish the misrepresentation made and credit given, but likewise a loss; and where the evidence shows that the mortgaged property has neither been sold, nor appropriated to the extinguishment of the senior mortgage, there is no such evidence of a loss by the junior mortgagee as will sustain a conviction of the debtor; especially is this true, where the evidence shows that the mortgaged property exceeds in value the aggregate indebtedness represented in both the mortgages, and it does not