Frick Co. v. Taylor , 94 Ga. 683 ( 1894 )

A mortgage fi. fa. against G. A. Taylor, covering lot 194 and the north half of lot 191 in the 2d district of Macon county, was levied on said land. John Taylor interposed a claim to the north half of lot 191 and 50 acres of the north side of lot 194. The property was found not subject, and plaintiff’s motion for a new trial was overruled. The main issue was as to fraud on the part of O. A. Taylor in procuring from John Taylor a deed to the land in question, before the execution of the mortgage made by him to plaintiff to secure a pre-existing debt; claimant testifying that the deed was obtained on the fraudulent representation of O. A. Taylor that it was a deed to some cows which claimant delivered to him at the time, he promising that if claimant would make the deed and send the cows to him, he would protect claimant against some debts claimed against him which he did not owe; no further consideration being paid or promised. To this testimony plaintiff’objected, and contended that in the absence of a plea of fraud the property must be found subject. For the same reason error was assigned on an instruction by the court, that if the title was obtained from claimant by fraud, no title could pass; and that plaintiff would not be protected as a bona fide purchaser without notice, where its mortgage was taken to secure a pre-existing debt. Further error, was assigned on the rejection from evidence of the record of the suit of Malsby & Avery v. John Taylor and Bob Tooke, upon a note promising to pay four bales of cotton, signed by them and payable to C. A. Taylor or hearer, “given for rent of land on Buck creek”; in which suit there was personal service on the defendants and judgment by the court against them.

J. A. Ansley and Edwards & Greer, for plaintiff. J. W. Haygood and Hardeman, Davis & Turner, for claimant.