Ford v. Fargason , 120 Ga. 606 ( 1904 )

Fish, P. J.

1. The word “trustee,” following a person’s name, is merely descriptio personse. Fargason v. Ford, 119 Ga. 343.

2. Unless an execution issued upon foreclosure of a chattel mortgage he arrested by counter-affidavit, it is final process. See Bank of Forsyth v. Gammage, 109 Ga. 222, and cases cited.

3. The only persons authorized to file such counter-affidavit are the mortgagor, his special agent or legal representative, and a creditor of the mortgagor. Civil Code, §§ 2765, 2768, 2769.

4. When such an execution is levied upon the mortgaged property and a claim is interposed thereto, the claimant, upon the trial of the claim, can not arpend the same by alleging that the mortgagor is not indebted to the mortgagee, nor introduce evidence tending to show it. See Wash v. Bank, 99 Ga. 592.

5. Where the head of a family, in the county of his residence, had certain personal property set apart as a homestead, and the homestead duly recorded there, and, after removing to another county, exchanged this property for other personalty without an order of court, and subsequently, while residing in a third county, in order to obtain credit, gave a mortgage on the property received in exchange for the homestead property, to one who had no notice, either actual or constructive, of the homestead, which had never been recorded except in the county where it was set apart, the mortgage reciting that the property described therein was unincumbered, such mortgagee obtained a valid lien upon the mortgaged property as against the claim of the beneficiaries of the homestead. Roberts v. Robinson, 63 Ga. 666; Sharp v. American Freehold Land Mortgage Co., 95 Ga. 415; Weaver v. Saffold, 101 Ga. 150; Walden v. Brantley, 116 Ga. 298.

6. The evidence authorized a finding that title to the property was in the mortgagor at the time of the execution of the mortgage.

7. There was no error in refusing a new trial.

Judgment affirmed.

All the Justices concur.