Midville Fertilizer & Gin Co. v. Wade , 30 Ga. App. 337 ( 1923 )

Broyles, C. J.

1. The defendant in fi. fa. was estopped, by reason of the recitals in the forthcoming bonds executed by him, from denying that the execution was levied upon the property described in the mortgage. See, in this connection, Civil Code (1910), § 5730; Smith v. Davis, 3 Ga. App. 419 (1) (60 S. E. 199); Farmers Alliance Warehouse Commission Co. v. McElhannon, 98 Ga. 394, 396 (25 S. E. 558); Mullis v. Kennedy, 143 Ga. 618, 620 (85 S. E. 845); Bushy v. Elliott, 22 Ga. App. 391 (2) (95 S. E. 1014).

2. Under the foregoing ruling, the court erred in refusing to strike the second ground of the affidavit of illegality, and the further proceedings in the case were nugatory.

Judgment reversed.

Luke and Bloodicorth, JJ., concur.