59 Ga. 230 | Ga. | 1877
A mortgage fi. fa. in favor of Warren, Wallace & Co. vs. Middlebrooks, was levied upon the land mortgaged. It
At the foot of the mortgage, and properly signed and attested, Middlebrooks agreed that the mortgage was for removal of the incumbrances of the judgments, and that they were transferred thereby to Warren, Wallace & Go.; but it was proven that the executions were satisfied when the mortgage was executed, and Warren, Wallace & Oo. sent a draft for the two thousand dollars from Augusta, where they resided.
The court refused so to charge, but charged to the following effect: that if defendant borrowed the money for which the mortgage was given, and applied the same to payment of a balance of the purchase money, due for the whole tract, then the land levied on was subject to the fi. fa. until the whole amount of purchase money was paid.
We see no error, in view of the facts of this case, in the refusals to charge, and the charge given. The charge as given, is in accordance with the decision of this court in Sale vs. Wingfield, administrator, 55 Ga. R., 622, and there can be no doubt that this land was subject to the mortgage debt. The letters in evidence, from Middlebrooks to Warren, Wallace & Co., and the testimony of Ross, show conclusively the object for which the money was borrowed; that it was to remove incumbrances from the land of Middlebrooks ; that these incumbrances were for purchase money, and that the land is clearly subject to this debt, notwithstanding the homestead, because the debt is within the express exceptions of the constitution. See Code, §5135.
The judgment must, therefore, be affirmed.