156 Ga. 779 | Ga. | 1923
Lead Opinion
The Sessions Loan & Trust Company made a loan of $3,000 to Norman M. Williamson on December 27, 1915, and took as security therefor a note and deed to secure the debt, conveying 280 acres of land, the same being in one tract. The note and deed were transferred to Harry L. Winter Inc., the defendant in error. When the indebtedness became due the defendant in error brought suit against Norman M. Williamson, and obtained a special lien on the 280 acres of land. The defendant in error executed a quitclaim deed to the land to Norman M. Williamson, had it recorded, and the land was then levied on, when the plaintiff in error filed a claim to' fifty acres of the land. Hpon the trial of the issue thus raised the claimant offered an amendment to the claim affidavit; and the court, upon motion of the plaintiff in fi. fa., struck paragraph two of the amendment and allowed paragraph one. To this ruling the plaintiff in error excepted pendente lite. Hpon the trial of the case the jury returned a verdict finding the land subject. The claimant filed a motion for new trial, upon the usual general grounds, and an amendment to the motion.
Error is assigned because the court excluded certain evidence of the claimant in answer to a question as to what “this tract of land is worth if the fifty acres you claim is not included,”, and the expected answer that “ if this land at public sale — that land other than the fifty acres which he claims and owned by him would bring a sum sufficient at public sale to discharge this debt, principal, interest, and attorney’s fees, and all costs.” The rejection of this evidence was not error. Nor was it error for the court to charge the jury: “ The sole question and the only question to be passed on by the jury in this case is, as I conceive the law, under the law and evidence, is this property subject? Whether or not this 230 acres remaining after carving out the fifty acres is sufficient to pay this debt or not, is not a matter to be considered by the jury, or to influence you in arriving at a verdict in this case.” We think that the trial judge correctly instructed the jury that the sole issue to be passed on by the jury was,, as- to whether the property levied on, which includes the fifty acres claimed in this case, was subject to the execution. Bryan v. Simpson, 92 Ga.
Dissenting Opinion
dissenting. I know of no decision that constrained the trial judge to refuse the amendment to the equitable claim, or to exclude the evidence which was offered. I agree thoroughly in the propositions that the claimant could not, after having carried the chain and witnessed the deed, have been in a position tó avoid the security deed. However, in a court of equity, where one has borrowed money, and the deed, though conveying title, is given purely for the purpose of securing that indebtedness, and a division can be effected without injury to the creditor, I cannot see how he can also claim the right to injure others in order to collect his debt.