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Guilmartin & Company et al. vs. Stevens et al. ating the trust, but in violation of the true intent and meaning thereof.
2. The admission of the letter written by Mr. Miller to Stevens, in which he stated to him, “If you can avoid having to mortgage this property, I am inclined to think it will be best not to do it,” was error. This letter of Mr. Miller to Stevens, was not competent evidence as against the mortgagees, it not appearing that they ever saw it, besides Mr. Miller was a competent witness to testify as to what he had done in the matter.
3. After the jury had been out consulting on the case some time, they came into court, and propounded the following question in writing to the court: “If Stevens used the money borrowed of Guilmartin & Company and Dupree, and secured by the mortgages, in the purchase of merchandise, was such a use of it in harmony with the power given by the trust deed ?" The court then instructed the jury in the following words: “I don't know about charging you on this subject ; it is rather an infringement on your province—well, I might as well cover the whole ground, and I charge you, that such a use would not be in harmony with the trust deed; the trust deel gave no such power.” If the court had charged the jury that if they believed from the evidence before them, that Stevens used the money borrowed from Guilmartin & Company and Dupree, secured by the mortgages, in the purchase of mechandise, such a rise of it, would not be iv harmony with the power given by the trust (leed, the charge would not have been objectionable, but whilst we do not indorse the charge given as being legally correct, still, it was an immaterial error, in view of the facts of the case. Notwithstanding the court may have committed some errors in the progress of the trial, still, the verdict was right under the evidence, and the law applicable thereto, in relation to the main question involved on the trial of the case, and we therefore affirm the judgment as to the remaindermen who were the complainants in the bill, and direct that the chancellor enter a decree on the verdict enjoining the defendants from proceeding with their mortFry vs. Shehee. gage fi. fas., to sell their interest as remaindermen in the trust property, such in our judgment being the legal effect of the verdict, inasmuch as Mrs. Stevens was not a complainant in the bill, and has not prayed for any injunction against the sale of her life estate in the trust property, but nothing in this decision is to be so construed as to conclude her from doing so hereafter if she shall think proper to do so.
Let the judgment of the court below be affirmned with directions.
DANIEL Fry, plaintiff in error, vs. HENRY D. SHEHEE,
55 2081 58 162 60 209 61 408 67 582 67 583 69 396
defendant in error.
55 208 98 277
1. Where the court charges the jury that if a purchaser from the mortgagor has
actual notice of the mortgage, he takes his title subject to the incumbrance of the mortgage, and seven years possession of the premises will not give him a prescriptive title, and there is evidence tending to show actual notice, this court will not overrule the discretion of the court below in refusing a new trial on the ground that the verdict is contrary to the charge of the court,
or to the law, or to the evidence. 2. In such a case, actual notice to the agent who purchases for the principal,
is, in the sense of the law, actual notice to the principal. 3. Where the purchaser buys from the mortgagor, and his title is a deed from
the mortgagor, with seven years possession of the land, and where the mortgage is legal and has been recorded within the time prescribed by law, the purchaser buys the title of the mortgagor incumbered with the lien of the mortgage. He does not hold adversely to the mortgagee, and no title by prescription is acquired by him so as to defeat the mortgage
lien. 4. Where the court is requested by the claimant to deliver his charge in
writing, and the plaintiff in execution makes certain requests in writing, and the court adds thereto orally, it is error; and where, in such a case, at the close of his charge, delivered in writing, the court, without the consent of claimant's counsel, superadds any remarks to the jury on the law of the case, this is also palpable error under our Code, and in all such cases a new trial will be granted, unless it plainly appears from the law and facts
disclosed in the record that such new trial would not change the verdict. 5. Where interrogatories are taken without commission regularly sued out,
under section 3891 of the Code, they need not show the residence of the witness; a substantial compliance with the general law is all that is neces
Fry vs. Shehee.
sary, and if the answers be legal on other grounds than those which have reference to technical points of the execution of the interrogatories, they
may be read to the jury. 6. If two sets of interrogatories be sued out for the same witness by the plain
tiff, and one set be ruled out at the instance and on motion of the claimant, as illegally executed, and the other set be admitted as legal, the illegal set cannot be used by the claimant to contradict and impeach the witness; the testimony excluded as illegal for one purpose, on motion of the claimant,
cannot be invoked by him as legal for another. 7. Counsel are required to know on what docket their cases are entered by
the clerk, and an agreement by them and the court that the dockets shall be called and tried in a certain order—that is, the issue docket first, the equity next, and the claim last-furnishes no good reason why a claim case entered on the issue docket should be postponed to the claim docket, although the counsel announces that he is not prepared on the law and the testimony, in consequence of the case having been called for trial sooner than he expected, it appearing that said claim case formed an issue for trial and
was entered on the issue docket and on no other. 8. Interrogatories sued out by claimant for the plaintiff with the usual ques
tions, and not requiring the plaintiff to answer to his information and belief as well as knowledge, are well answered if the plaintiff answers as any other witness from knowledge; if the plaintiff desires to probe his conscience, as in a bill for discovery, he must ask him to answer to the best of
his information and belief as well as his knowledge. 9. Where interrogatories are sued out for witnesses who do not answer as
much as counsel expected them to answer from his knowledge of what they would testify, and the witnesses are not interrogated upon the only point which cannot be proved by other evidence, and all defects to the execution are waived by the other side, a continuance ought not to be granted; but if two witnesses resided in the county when subpænaed and resided there when counsel last heard from them-his client being a non-resident, and counsel making the showing—and the testimony is material, the case should
be continued. 10. It is not necessary to make the legal representative of the defendant to
the mortgage fi. fa. a party to show payments on the fi. fa., or fraud and collusion between a former administrator of the defendant and the plaintiff in regard to the fi. fa., or the mortgage; the claimant, in the claim case between the plaintiff in the mortgage fi. fa., and himself, may prove any. thing going to show that the execution is paid, or any part of it, and any fraud or collusion between the plaintiff and anybody, or any other equitable defense he may have, touching the mortgage and its interference with
his claims to the land covered by it. 11. If it appear from the face of the execution that it is against the adminis
trator, and not against the party individually, the fi. fa. is a good and valid valid process, though the little word, “as” be not prefixed to the word "administrator."
Fry vs. Shehee.
12. It is enough for the plaintiff in fi. fa. to introduce to the jury his fi. fa.
without the petition and the rules nisi and absolute; the claimant may introduce the balance of the record, if, he wishes to do so; and when the mortgage is also introduced, if the fi. fa. identifies it as that on which it is founded, the lien of the fi. fa. will relate back to the date of the mort.
gage. 13. The record of a mortgage made in time is notice to the world; its lien
is good for twenty years, and it may be foreclosed at any time within that period; and if the purchaser of the land covered by such a mortgage, hold by title from the mortgagor, whether that title be from the state down, passing through the mortgagor, or by prescription, the mortgage is good for
twenty years against such purchaser. 14. If the mortgagee indulges the mortgagor for a consideration until he be
comes insolvent, such indulgence will make the purchaser's title good; but is, without any consideration, he indulges him, such indulgence, unless the facts show fraud, will not relieve the title of the purchaser from the en
cumbrance of the mortgage. 15. Although the court may commit error on legal points complained of, this
court will not grant a new trial, where it plainly appears, from our view of the law and the portion of the evidence undisputed by the parties, that the verdict in any event must stand.
Prescription. Vendor and purchaser. Mortgage. Notice. Principal and agent. Adverse possession. Practice in the Superior Court. Charge of Court. Interrogatories. Evidence. Attorneys. Discovery. Continuance. Claim. Execution. Administrators and executors. Registry. New trial. Before Judge STROZER. Decatur Superior Court. November Term, 1874.
Reported in the opinion.
J. C. RUTHERFORD, for plaintiff in error.
Bower & CRAWFORD; R. F. Lyon, for defendant.
Henry D. Shelee, in 1854, sold a tract of land in the county of Decatur to John P. Gaulden, and put him in possession thereof, taking a mortgage to secure the payment of the purchase money. John P. Gaulden sold this land in 1863 to Daniel Fry, who went into immediate possession, and held it
Fry vs. Shehee.
for more than seven years. Shehee foreclosed his mortgage in 1869, and execution issued thereon, and the execution was levied in November, 1870, more than seven years after Fry bought and went into possession. The mortgage was recorded on the day of its execution. When the levy was made, Fry claimed the land; the jury found it subject, and a motion was made for a new trial, on many grounds; the motion was overruled on all, and that refusal on all the grounds is assigned for error here.
1, 2. The first three grounds may be considered together. They are that the verdict is contrary to the law, the evidence and the charge of the court: It is not disputed that if Fry bought with actual notice of this mortgage, his seven years' possession, with deed from Gaulden, would not work a prescriptive title in him so as to defeat the mortgage. There is evidence enough in the record to sustain the verdict in this view of the law in our judgment. The brother of the plaintiff bought the land for him, and was informed of the incumbrance upon the land; it was his duty to inform his principal; his, the ageni's, conscience was charged with this notice, and notice to the agent in the line of the business entrusted to him and within the scope of his authority, is notice to the principal. So that in this view of the law, even should we hold that in this case actual notice is necessary to charge the conscience of the purchaser, there is sufficient evidence to sustain the verdict as not being contrary either to the law or to the charge of the conrt, or to the evidence.
3. But we do not rest our judgment upon the application of the law to the facts of this case upon this legal principle which is conceded by the counsel for the plaintiff in error to be correct. We hold that no tenant of lands holding under the mortgagor, deriving his title from him, can acquire a prescriptive title as against the mortgagee, if that mortgage has been recorded within the time prescribed by law, and is valid and legal in other respects. It is true that this court has decided, in Wright vs. Smith, 43 Georgia, 292, and in Garrett vs. Adrian, 44 Georgia, 274, that where the same feoffor sells