Biggers v. Webb

Felton, J.

H. O. Biggers foreclosed a mortgage on “one blue horse mule, weight about 1000 lbs.,” which mortgage was executed by G. L. Webb and was payable to the plaintiff in fi. fa. Mrs. G. L. Webb filed a claim. The court directed a verdict for the claimant, and the plaintiff excepted.

1. The evidence on the question as to whether the mule was the property of G. L. Webb, or was the property of his wife, the claimant, is substantially the same as the evidence in Biggers v. Webb, 58 Ga. App. 684 (199 S. E. —). Under the rulings in that case and those herein made, it was error not to submit the question of ownership of the mule to the jury for determination.

2. It was error for the court to refuse to admit in evidence for the plaintiff the mortgage foreclosed in the case. As between the plaintiff and the defendant the description in the mortgage was sufficient to identify the property. Beaty v. Sears, 132 Ga. 516 (64 S. E. 321), and cit. Mrs. Webb did not contend that she was the owner of the mule by being a bona fide purchaser from her husband without notice of the mortgage’s lien on the mule. She contended that the mule never did belong to her husband, that he bought it as her agent, and that the title passed into her and not into him. Under the circumstances she can not contend that she was hurt by an insufficiency of description. She is in no better position than her husband to complain of an insufficiency of description. See Stewart v. Jaques, 77 Ga. 365 (3 S. E. 283, 4 Am. St. R. 86); Nussbaum v. Waterman, 9 Ga. App. 56 (70 S. E. 259).

3. It was error for the court to refuse to admit in evidence the mortgage execution and entry of levy. The description in the mortgage was sufficient, and the evidence made a question for the jury to decide as to whether the title to the mortgaged property was in G. L. Webb on the date the mortgage was executed.

4. It was error to refuse to permit G. L. Webb to answer the question as to how many blue horse-mules he had. The evidence sought to be elicited was relevant on the question as to whether the mule levied on as the property of G. L. Webb was his property, or whether it was the mule covered by the mortgage. Plaintiff’s attorney stated to the court that such was the purpose of the question, and that if the witness had been permitted to answer he would have answered that neither hé nor his wife had but one blue horse-mule, and that only one such mule was on the premises occupied by him and his wife at the time the mortgage was executed.

The court erred in directing the verdict for the claimant, and in overruling the motion for new trial.

Judgment reversed.

Stephens, P. J., and Sutton, J., concur.