Freeman v. Coleman, Ray & Co. , 88 Ga. 421 ( 1892 )

Judgment affirmed.

A mortgage fi. fa. in favor of Coleman, Nay & Company against A. Ii. Wyche was levied upon “ one black mare-mule six years old named Pigeon,” and “one black mare-mule seven years old named Pet,” which were claimed by Mrs. Freeman. IJpon the trial the jury found the property subject. Mrs. Freeman’s motion for a new trial was overruled, and she excepted. In addition to the grounds that the verdict was contrary to law, evidence, etc., the motion contained the following special grounds:

1. Error in admitting a mortgage dated February 21, 1888, over the objection of claimant that it was in no wise connected with the issue in this case, and that the execution of it in her presence and hy her consent did not bind her as to the mortgage sued on.

2. Error in refusing to charge: “A married woman cannot become the security for anybody, and this is true whether she seek to become the security by signing her name to a note, or by consenting for another person to pledge or mortgage her property for his benefit. And if you should believe from the evidence that Mrs. Freeman is and was a married woman at the time of the execution of the mortgage, and that the property mortgaged was her property, and that the debt was the debt of her brother and not hers, then she could not consent to the mortgage, and if you so believe you will find for the claimant.^ A married woman cannot consent to mortgage her property to secure the [debt] of another person.”

3. Error in failing to give the jury any rules by which to determine the credibility of the witnesses, this being a case where the same were applicable and necessary to enable the jury to find the truth.

4. Error in permitting the establishment of an alias fi. fa. in lieu of the original mortgage fi. fa. in this case, under the following circumstances : The case was called in its order and parties announced ready. The jury was stricken and the case opened. Plaintiff tendered a certified copy of thefi. fa., stating that the original was lost. The same was objected to, on the ground that afi. fa, could not be established in that way, but that an alius must be established. The objection was sustained, and the court suspended the case and allowed plaintiff to prepare and present pleading to establish an alias fi. fa.; all of which was done over the objection of claimant, who insisted that the ease should proceed. And it is further alleged as error that the court admitted the fi. fa. thus established over the objection of claimant on the ground that the case (?) was or had not been properly established. The proceedings to establish the alias fi. fa. were as follows: A petition of plaintiffs alleging that a mortgage fi. fa. issued from the superior court on a certain day and for a certain sum against defendant, that the original fi. fa. had been lost and could not be found after diligent search therefor, and that the original fi. fa. was an office paper and was in the clerk’s office at the preceding term of the court; wherefore an order was prayed, establishing a copy of the mortgage fi. fa. with the entries of levy, etc., as appeared upon the original fi. fa., “and that the attached copy is substantially a correct copy of said original mortgage fi. fa. with the entries thereon.” This petition was supported by affidavit of Birch to the effect that the facts set forth in the petition were true, and the copy mortgage fi. fa. attached was a true copy of the original fi. fa. and “interest” (?) as appeared thereon. Attached was what purported to be a copy of the fi. fa. and entries thereon. The judge’s order was, that upon hearing this petition and evidence sustaining the same, it was ordered “that the within mortgage fi. fa.” be established in lieu of the original fi.fa. so lost.

5. In an amendment to the motion it was alleged that since the adjournment of the court the original ji. fa. had been found, and was materially different from the alias allowed by the court, and movant offered this material difference as an additional ground for setting aside the verdict, because the recovery on the alias was not a recovery on the ji. fa. issued by the clerk on the foreclosure, and the debt enforced by the finding is not the enforcement of the mortgage debt. The differences alleged were, that the original fi. fa. was for $13.86, interest to January 30, 1889, when the alias was for that amount, interest to February 2, 1889 ; that the original was for $693.80, and the alias for $693 ; that the original described the growing crops as on his lands in Jones county where he cultivated, and the alias describes crops “now up and growing on my [the mortgagor’s] land in Jones county, which I am now cultivating.”

The mortgage foreclosed was dated June 1, 1888, and was given by Wyche to Coleman, Nay & Company, upon the mules mentioned above and other property, to secure an indebtedness of two notes and a draft dated February 21, 1888, and duo respectively October 1, October 15, and November 1, 1888, for $96, $300 and $244.45, and a draft for $53.25 dated April 19,1888, and due September 25, 1888. The mortgage of February 21,1888, was by Wyche to Coleman, Nay & Company, upon the mules and certain other property, to secure an indebtedness of $640.55, being apparently the same indebtedness as that mentioned in the mortgage of June 1st, except the draft for $53.25. In addition to the mortgages the plaintiffs in ji. fa. introduced the two notes and draft first mentioned, which were signed by Wyche,. Mrs. Freeman and Mrs. Wyche ; and in connection introduced evidence that the claimant was present when the mortgage of February 21, 1888, was drawn and signed; that one of plaintiffs, Birch, had drawn a mortgage for claimant to sign, but she objected, saying that Wyche must mortgage Ms own property ; tliat the advances were made to the claimant, and would not have been made to "Wyche except on her signature; that the supplies were shipped to Wyche; that_ when the proceeds of the draft were counted to Wyche he handed the. money to the claimant 'and said, “Here is your money” ; that claimant first approached this one of plaintiffs to get the loan and advances, and he thought none of the property was hers and that she would make Wyche pay was why he wanted her to sign the notes ; that he had heard that she had a husband about town, but was under the impression that she was divorced; that she did not claim any of the property described in the mortgage of February 21st, but stated that “ Boisey” (presumably defendant Wyche) had property of his own, and for plaintiff to take a mortgage on it, and' he did so, destroying the one he had drawn on her property; that Wyche then, in her presence, described this as his property, and the mortgage was written ; and that she did not intimate it was her property. The evidence for claimant upon this subject was, that the property in question belonged to her, and had been bought by her in 1886 ; that she was and is a married woman, and plaintiff* knew this fact when the mortgage and notes of February 21 were made; that she was security for Wyche, and informed Coleman & Ray that the propexty mortgaged was hers; that she asked Ray if she should sign the mortgage, and he said it was not neeessaxy; that the money was handed to hex’, but she did not use dt; that it was for Wyche axxd he used it all; that she was present when the mortgage of February 21st was drawxx axxd saw Wyche sigxx it, etc.

Richard Johnson and R. L. Berner, by Harrison & Peeples, for plaintiff in error. R. Y. Hardeman and Hardeman, Davis & Turner, contra.