Smith v. Camp

84 Ga. 117 | Ga. | 1889

Bleckley, Chief Justice.

1. That the mortgage was not duly probated so as to prepare it for admission to record, was no objection to its validity as between the parties. It had two subscribing witnesses, and one of them proved, by his testimony given at the trial, the execution and delivery of the mortgage. Being thus proved, it matters not how defectively it was attested. Gardner v. Moore, 51 Ga. 268; Nichols v. Hampton, 46 Ga. 253; Marable v. Mayer, 78 Ga. 60.

2. The variance in the description of the property as set forth in the mortgage and the levy, was not a good ground of illegality to thefi.fa. The description in the mortgage was, “one speckled yoke of oxen, both named Dave, about eight years old.” That given in the levy was, “one yoke of oxen, red speckled sided, about nine years old.” Both of these descriptions could well be applied to the same oxen. They were about one year older when the levy was made than when the mortgage was executed, and though it does not state in the levy that both were named Dave, that omission is' certainly not material.

3. The only remaining ground of illegality alleged in tho affidavit is payment of the mortgage debt, and upon that the evidence was conflicting, and the jury settled the conflict by its finding. We do not see that they made any mistake.

4. It is complained that an account in favor of the mortgagees, against the mortgagor, was improperly admitted in evidence because irrelevant. It was, however, not irrelevant, for the reason that, according to the testimony on one side, certain payments were applied to the account and not to the mortgage. The account showed on its face that these payments, or some of them, were so applied. It was competent to show that the account in fact existed, and that payments had been made upon it, and were credited accordingly.

5. Two verdicts were rendered, one of them for a gross sum, including interest and attorney’s fees; the other separating principal, interest and attorney’s fees, and specifying the amount of each. The presumption is that the latter was a substitute for the former, as it is correct, whilst the former was incorrect. The magistrate’s return does not explain how the irregularity occurred.

6. That the verdicts were written upon the account, and not upon the mortgage, we think makes no difference. The presumption is that the magistrate will take proper care to preserve the document, whatever it may be. It would have been better to order that the proper verdict should be transcribed upon the affidavit of illegality, but it seems this was not suggested. We think that was the paper upon which to write and sign the verdict, and not the mortgage.

7. The refusal to allow the sheriff’s return of the levy to be traversed was correct. The defendant got or retained possession of the property by giving bond under §8976 of the code, and the bond recites the levy. Consequently, whether there was an actual seizure was not open to question. If there was no such seizure, there was no occasion for any bond. Cohen v. Broughton, 54 Ga. 296; Scolly & Co. v. Butler, 59 Ga. 849. The affidavit of illegality itself also alleges that the fi. fa. was proceeding illegally by levy. It could not be proceeding at all by levy unless the levy had been made.

S. It may have been irregular and improper to withdraw the,//, fa. pending the case made by the affidavit of illegality, carry it to another county, there have it “backed” and levied upon other property covered by it, but this did not render the fi. fa. illegal or vitiate the levy previously made upon the oxen. The levy upon the other property may have been illegal, hut that question Was not up for consideration. The affidavit on trial presented no such issue, nor could it, as it was made before this new matter arose or had any existence.

There was no error in overruling and dismissing the certiorari. Judgment affirmed.