Jones v. Kaplan , 48 Ga. App. 118 ( 1933 )

Broyles, C. J.

Lester T. Jones executed his deed to John W. Moseley, conveying to him the land and premises in dispute in this case, to secure an indebtedness of $75 evidenced by a note and referred to in the deed. Moseley transferred and assigned to Aaron Kaplan the note and the deed to secure it, the transfer being as follows: '“Georgia, Montgomery county. Por and in consideration of the sum of $75.00 paid to me by Aaron Kaplan, I hereby sell and assign and transfer unto the said Aaron Kaplan all of my title, interest, rights, property or possession in and to the within and foregoing mortgage; and also all of my rights and mortgage lien on the town lot No. three (3) in block No. seven (7) in the town of ITvalda, Georgia, which is therein fully described. In writing [witness?] whereof I have hereunto set my hand and affixed my seal and delivered these presents on this the 29th day of January, 1931. J. "W. Moseley (L. S.) Signed, sealed and delivered in the presence of us: S. Kaplan, J. S. Kennedy, J. P.” This paper was duly recorded by J. H. Peterson, clerk, on January 31, 1931. Jones defaulted in payment of the debt, and Aaron Kaplan exercised the power of sale contained in the deed assigned and transferred to him by Moseley. Jones refused to surrender possession of the premises to Kaplan, and the latter sued out a dispossessory warrant, to which Jones filed a counter-affidavit. Upon the trial of the issue thus formed the court directed a verdict in favor of the plaintiff for a recovery of the premises in dispute and for accrued rents. Jones made a motion for a new tidal, which the court overruled, and upon this judgment he assigns error.

The only special ground of the motion for a new trial complains of the direction of the verdict. The case of Henry v. McAllister, 93 Ga. 667 (20 S. E. 66), cited by counsel for plaintiff in error, is differentiated by its facts from the instant case and from the case of Hunt v. New England Mortgage Security Co., 92 Ga. 720 (19 S. E. 27), from which the first headnote to this opinion is quoted. Indeed, the ruling in the Hunt case is approved in the McAllister case. See also Hightower v. Haddock, 153 Ga. 160 (111 S. E. 413); Ga. L. 1924, p. 56 (Code, Park’s Supp. 1926, and Michie, § 3306).

Under the evidence (including the deed from Jones to Moseley) and the foregoing authorities, the court did not err in directing the verdict or thereafter in overruling the motion for a new trial.

Judgment affirmed.

MacIntyre and Guerry, JJ., concur.