80 Ga. 408 | Ga. | 1888
It appears that at the February term, 1875, of Baldwin superior court, Lucinda A. Trice, executrix of E. Trice, deceased, obtained a judgment against Nathan McGehee for the sum of $877.20, principal, with interest and' costs. Execution was issued on this judgment in April, 1875, and this execution was levied upon 269 acres of land as the property of Nathan McGehee, in March, 1885. In April, 1885, H. M. Rose filed a claim to said land. At the same term of the court, he filed a bill in equity in aid of his
It appears from the record that this mortgage execution of Rose was lost at one time, and that Rose petitioned the court for an alias fi-fa-, stating in said petition that McGehee had never paid any part of said debt. Rose testified on the trial of the case that McGehee was his half-brother, and that he had stood his security on a promissory note for $2,500, in 1872, which his brother was unable to pay when the same fell due, and that he (Rose) took up the note, substituting his own note and a mortgage on his own land in place of the note- on which he was security, and that McGehee, in order to reimburse him, sold him this land and put him in possession; that he went into possession of it in January or February, 1873-; that his posses-" sion was open and notorious, and remained so up to the time of the trial; that shortly after he purchased the land from his brother, his brother removed from the place to his mother’s house, where Rose himself lived, he and Mc-Gehee being sons of the same mother; that McGehee was old and feeble at the time, and went to his mother’s in order to be taken care of and because he had no other relatives in that county to whose house he could go; that he foreclosed the mortgage against his brother after the sale of the land to him by his brother, because he was advised by Mr. Briscoe at the time that that was the way to protect his title; that he did not think a deed was necessary after the foreclosure; that he deposited the mortgage execution with two creditors at'different times as collateral security for loans made to him, and at each-time and on all occasions he asserted his ownership of the land to the
This, in substance, is the testimony which was before the jury upon the trial in the court below. The jury found the property not subject. Mrs. Trice made a motion for a new trial, which was overruled by the court, and she excepted. The grounds of the motion for a new trial are as follows: (1) that the court erred in admitting claimant to testify to an oral contract between himself and the defendant in fi.fa., who is now dead, said contract being the chief issue on trial; (2) said verdict is contrary to law and the evidence and the charge of the court; (3) the court erred in charging §35S3 of the code as applicable to the evidence.
We therefore think that when Mrs. Trice, as executrix of her husband’s estate, allowed her judgment to remain in the sheriff’s hands, and never levied it upon this land until four years after she had obtained a judgment, and Rose became a Iona fide purchaser for value, the lien of the judgment was discharged as to this land, whether Rose had a paper title or not; and the court below did not err in giving this principle in charge to the jury.
Judgment affirmed.