Johnson & Smith v. Wheelock , 63 Ga. 623 ( 1879 )

Jackson, Justice.

A motion was made for a new trial in this case, on the ground, among others, that the verdict was contrary to law and evidence, and without evidence to support it. The court granted the motion and Johnson & Smith, who were the complainants below, excepted. The case was a bill bled to foreclose mortgages and establish the lien thereof against judgments junior to the mortgage lien. The case was here in part before, and is reported in 56 Ga., 33. The present plaintiffs in error then claimed part of this property when levied on by Wheelock’s fi. fa., and it was found subject to pay the judgment because the deeds were founded upon a usurious consideration, and the title therefore void.

The claimants then, who are the complainants now, and plaintiffs in error here, bled this bill against Wheelock and other holders of judgments against Lee & Fulton, to foreclose the deeds as equitable mortgages against Lee & Fulton, and to subject the lands to pay their debt before Wheelock’s judgment and the judgments of the other defendants were paid, all of which were younger than the date of the deeds. The jury found in favor of the complainants and subjected the lands to be first applied to pay the mortgages which they directed foreclosed, and postponing the judgment creditors until the complainants were paid. A new trial was granted. We see no error in granting it. The deeds on their faces were absolute, and they were so recorded. There was no record of any mortgage, equitable or otherwise, and the- judgment creditors had no notice of any mortgage lien of the complainants. Therefore, without going into other questions, the verdict was against law as to the judgment creditors.

2. The effect of overruling the demurrer was to require the defendants to answer, and is an adjudication that complainants are entitled to some relief. They certainly have ■the right to foreclose the mortgages and were entitled to go on for that purpose. But the precise extent of that relief was not determined. If the demurrer had gone to a particular part of the bill, as to that the defendants might have been concluded. 14 Ga., 168; 60 lb., 488; Code, §§1955., 1957.

-Judgment affirmed.