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Fry vs. Shehee.

land to A and B, and A has the older deed, and that deed properly recorded, and B has gone into possession, and held the land for seven years, exercising acts of ownership over it, B's prescriptive title is good against A's prior deed. The doctrine is that B must bave actual notice, and the constructive notice of the record of A's deed vloes not affect B’s conscience so as to make his adverse holding unconscientious and fraudulent against A. But in those cases B's possession is adverse to A ; the titles of the two men are wholly in conAlict; they both claim the absolute fee. The very moment B entered as landlord and set up ownership, A is notified that one is in possession of his land which he has bought; that he is not there as his tenant, but is on the land without his authority and holds adversely to him. Hence, the moment B enters thus, no matter from whom his deed comes to him, even though it be from A's feoffor, he holds adversely and his prescription begins, and if A let him remain in possession seven years uninterrupted, A's older and otherwise better title is destroyed by the new-born prescriptive title of B.

But a mortgagee has no title to land in Georgia. The title never passes out of the mortgagor into him. It remains in the mortgagor, and the mortgagee has a mere lien or security on the land for his debt. He has no right of entry. He cannot maintain ejectment, and as he cannot eject the person in possession of the land, it is difficult to see how that possession is adverse to him, and therefore how any prescriptive right can be acquired against him. When the mortgagor sells the land, he sells all the title he has. That title is the fee, but the fee encumbered by a security for debt, a lien or charge on the land for the purchase money in the case at bar, called a mortgage. The purchaser gets that title, but he gets it exactly as the feoffor had it-cum onere, encumbered by the mortgage. It is true, that this court, in the case of Stokes, administrator, vs. Maxwell et al., 53 Georgia Reports, 657, held that the purchaser from a vendor other than the mortgagor and in possession of land seven years, acquired a prescriptive title against the mortgagee; but that case rests upon the principle that

Fry vs. Shehee.

such purchaser entered not under the title of the mortgagor, not as his vendee at all, but as the vendee of a stranger to the mortgagor, and therefore he enters allversely to the title of the mortgagor and the lien of the mortgagee, and holds adversely to both. The title he has bought is not encumbered with the lien; there is no privity between him and the mortgagee; he buys free from all incumbrances and mortgages, and holds adversely to the mortgagor's title, its rights and appurtenances, liens, encimbrances and mortgages. The court expressly says: “If it had been shown that Sutherland, and those under whom the claimant derives his title, had purchased the land from Gilbert, the mortgagor, subsequent to the date of the mortgage, then the claimant would have been a privy in the estate with the mortgagor, and have held the land subject to the mortgage, and could not set up a title by prescription as against that mortgage lien, for the reason that he went into possession of the land under a title which was encumbered with that lien :” Stokes, administrator, vs. Maxwell et al., 53 Georgia Reports, 657. It is said that these words are obiter dicta, but they are not. The whole question was discussed and decided, and it is the unanimous judgment of this court and binding upon us now. If it were not, we concur in the principle of the decision, and would so hold the law for the reasons above given. It seems to us quite clear that Fry bought the title of Gaulden; he got that title; he holds it now; nobody (lisputes that the fee is as completely in him as it was in Gaullen; every right that Gaulden had he now holds, and the only encumbrance upon his title is the mortgage lien or security for the purchase money which was given by Gaulden and inhered in the title which Fry bought.

4. The fourth and twentieth grounds of the motion for the new trial may also be considered together. They are to the effect that after the juilge had been requested to give to the jury his charge in writing, he added verbally to the requests of the plaintiff in fi. fa.; and also at the request of claimant or plaintiff (the judge says that he does not remember which) he added verbally to his written charge. He was requested

Fry vs. Shehee.

by the claimant to put his entire charge in writing, and when he gave the written request of the plaintif to the jury, and added verbal remarks to those requests, we think he erred; and when, at the request of somebody, he added to his charge by oral remarks to the jury without the assent of claimant's counsel, who had made the demand that the whole charge be put in writing, the error is palpable. Our Code is very plain. The judge is positively required to put his charge in writing on the demand of either party; and he is required to file this written charge in office for the inspection of all concerned. How can he file a written charge in office when a part of it only is written and the rest is in his memory? The great object of the statute is to prevent disputes between the judge and counsel as to what was the charge; and the only way to prevent them is to require the courts to conform rigidly to the statute. Indeed, the better practice would be for the judge to put every charge in every case of any importance in writing. It may be a little troublesome and laborious, but it would avoid much wrangling and controversy, and sometimes a good deal of hard feeling, and would make the practice more pleasant both for bench and bar, and insure fairness in exceptions and assignments of error here. This, however, is matter of taste and discretion; but when either party requires the charge to be given in writing, it then becomes matter of positive law, and it is error to make any portion of the charge orally. It is no reply to say that the oral charge was more favorable to the complaining party than to the other side. The oral charge, as certified by the court may be, but the question is, what was that oral charge? The court certifies one thing; the counsel maintains that it was another; the certificate of the judge rules in this court, and the whole benefit of this remedial statute is lost to the counsel: Code, sections 244, 245.

5. The fifth ground for new trial is that the court admitted the interrogatories of Drury Ranbo over the objection that they did not show the residence of the witness. The interrogatories were taken by consent under the act of 1873; the objec

Fry 7's. Shehee.

tion was not to any answer of the witness; and we think that they were properly admitted : Code, section 3891.

6. The sixth ground is that the court having, at the instance of claimant, ruled out another set for the same witness on the same ground, but where the interrogatories were sued ont regularly under the general law, the court refused, after the argument had commenced, to allow the claimant to read them, thus ruled out, to contradict the statement of the witness in the other set. We think the court did right. Counsel for claimant should have examined both sets, and adopted his line of policy before he made his motion to rule out. At all events, it is difficult to see how illegal testimony becomes legal because it is offered to impeach a witness.

7. The seventh ground is that the court erred in forcing claimant to trial under these facts. It had been agreed by counsel, and assented to by the court, that the issue docket should be called first, the equity docket next, and the claim docket last; and counsel for claimant, living in Macon, was surprised when this case was called on the issue docket, and not ready for trial on law or facts. It appears that this case was on the issile docket-it seems to have been there for some time—it was the duty of counsel to have known where it was, and when he agreed to the order of trial he would have known when he would be required to meet this case. We see no error here.

8. The eighth ground is that the court overruled claimant's motion for a continuance. This motion was based upon four grounds : 1st. That the claimant bad sued out interrogatories for plaintiff'; that these interrogatories were in the nature of a bill for discovery, and were not fully answered. The questions were propounded in the ordinary way; the plaintiff was examined as an ordinary witness; he was not required to answer to the best of his knowledge, information and belief, as in an equity proceeding, anıl we think the motion was properly refused on this ground.

9. 2d. That he had sued out interrogatories for two of the brothers of claimant; that these were not fully answered,

Fry vs. Shehee.

and in this particular were defectively executed. The defect was waived by the plaintiff and the interrogatories read. The only material matter which claimant wished to prove by these witnesses, in the view of the court below, was that the purchaser had no notice of the mortgage, and about that the witnesses were not questioned. The other facts were proven sufficiently by other witnesses, and no harm was done. Counsel, who made the motion, did not state the facts which he expected to prove as showing no notice. This ground was properly overruled.

3d. That two witnesses were absent, who lived in the county when subpoenaed, one of whom he knew was trying to rent land in the county the year of the trial, and, that so far as he knew, they were still in the county, and the evidence was material. We think the court erred in not continuing the case on this ground.

10. 4th. That Bruton, administrator of Gaulden, had died, and claimant wished to make the legal representative of Gaulden a party to get in an equitable defense that said Bruton had colluded with plaintiff to defraud claimant; that large sums had been paid by him to plaintiff, and never crediter! ; that he had wasted the estate of Ganllen, etc., etc. We think the motion on this ground was properly overruled. We cannot see how the legal representative of Gaulden was a necessary party to enable claimant to put in this defense. He had the right to show, as the pleadings stood, any payments that ought to have gone on the fi. fa., and any fraud of plaintiff with anybody, by which he was damaged as to this incumbrance upon his land.

11. The ninth ground is that the fi. fa. was against Bruton, administrator of Gaulden, and not as a ministrator of Gaulden, and the court erred in admitting it in evidence, as it thus, in law, was against Bruton individually, and not as administrator. The language of the fi. fa., taking it altogether, shows that it must be an execution against Bruton as administrator, and the ruling of this court at this term in the case of Jennings, administrator, vs. Wright & Company, is to

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