102 Ga. 189 | Ga. | 1897
On October 28, 1895, Reid brought an action for damages against Matthews, alleging in his petition, that on April 25, 1890, Parks, to secure a debt due to plaintiff, executed and delivered to him a mortgage on a horse. The mortgage was duly recorded on March 4,1891, and execution, issued upon what purported to be a foreclosure of the mortgage, was levied upon the horse. Matthews interposed a claim thereto, and attacked the validity of the foreclosure proceeding, and was successful in this attack. On October 26, 1895, plaintiff, having dismissed the first foreclosure proceeding, again foreclosed the mortgage. Execution issued, and the sheriff having made search for the property and failing to find it, made a return to that effect on the execution. Plaintiff then demanded of Matthews that he produce the property which had been in his possession, that it might be levied on under the mortgage fi. fa., which Matthews failed and refused to do. It is alleged that the defendant fraudulently concealed and removed the property, and that, the mortgagor. having become a non-resident, plaintiff had lost his debt. It was further alleged that the plaintiff did not discover the fraud perpetrated upon him by the defendant until after April 2, 1894, which was the- date
Judgment reversed.