Baker v. Shepherd , 37 Ga. 12 ( 1867 )

Warner, C. J.

There are two errors assigned to the judgment of the Court below in this case. First, in rejecting the mortgage fi. fa. when offered in evidence to the jury. Second, in allowing the jury to pass upon the merits of the case after the fi. fa. had been rejected, and return a verdict for the claimant.

1. The fi. fa. was issued upon the judgment of foreclosure of a mortgage against the administrator of John T. Warren, deceased. It appears from the record, that John Warren, before his death, and Charles H. Warren, as tenants in common, mortgaged the premises described in the mortgage deed to Baker, the plaintiff, to secure the payment of two promissory notes. The judgment of foreclosure was against Shepherd, the administrator of John T. Warren. The fi. fa. commanded the sheriff to make money out of the interest of John T. Warren, deceased, in the land described in the mortgage, upon the judgment of foreclosure, against his administrator, to-wit: lot number forty-eight, and the south-west corner of lot number sixty, in the twenty-second district of Stewart county. The shei-iff levied the mortgage fi. fa. “upon the interest of John T. Warren, deceased, the same being the undivided one-half interest in and to the following lands, to-wit: Number forty-eight, in the twenty-second district of Stewart county, and the southwest corner of lot number sixty, in the same district of said county.” The property levied upon by the sheriff was claimed' by Bryan. Upon the trial of the claim case in the Court below, the plaintiff proved that John T. Warren was in possession of the mortgaged premises at the time of the execution of the mortgage. When the plaintiff offered the mortgage fi. fa. in evidence to the jury, the claimant objected on the ground that the fi. fa. did not show what was the-interest of John T. Warren in the mortgaged premises. The Court sustained the objection, and ruled out the fi. fa.

John T. Warren and Chas. H. Warren jointly mortgaged the land as tenants in common, at least that is the legal presumption in the absence of any evidence to the contrary. By the 2282d section of the Code, tenants in common will be held to have equal shares in the property, unless the contrary appears. Shields vs. Stark, 14th Ga. Rep., 429. The interest of John T. Warren in the mortgaged premises was the one-half undivided interest therein, so far as the record discloses the facts. The fi. fa. commanded the sheriff to levy upon the interest of John T. Warren in the mortgaged premises, and he levied upon the undivided one-half interest therein as his property in the same. The law defines his interest as a tenant in common, and the sheriff levied thé mortgage fi. fa. upon that interest, no more, no less; that interest is certain, which the law declares to be certain. In Whately vs. Newsom, 10th Ga. Rep., 77, the sheriff did not describe the interest in the land to be sold: here the interest of the defendant is described in the sheriff’s levy explicitly, and although the fi. fa. does not describe his interest, yet the law declares what it is, and the sheriff has not transcended his authority in making the levy. This mortgage has been before this Court on a former occasion. In Baker vs. Shepherd, et al., (30th Ga. Rep., 706,) this Court held, that “where two give a lien on their separate interest in the same property to a common creditor, the mortgage may be foreclosed separately against each.” i John T. Warren mortgaged his interest in the land, the mortgage has been foreclosed as to that interest — the lato defines that interest as a tenant in common, the fi. fa. commanded the sheriff to levy upon that interest, and he has done so. Andrews vs. Murphy, 12th Ga. Rep., 431. In our judgment, the mortgage fi. fa. under the state of facts presented in this record, ought to have been admitted in evidence to the jury.

2. It is also our judgment, that when the fi. fa. was rejected by the Court, and the plaintiff had no case before it, that the Court should have dismissed it, and not have allowed the jury to find a verdict for the claimant in the case.

Let the judgment of the Court below be reversed.