Fry v. Shehee , 55 Ga. 208 ( 1875 )

Jackson, Judge.

Henry D. Shehee, in 1854, sold a tract of land in the county of Decatur to John P. Gaulden, and put him in possession thereof, taking a mortgage to secure the payment of the purchase money. John P. Gaulden sold this land in 1863 to Daniel Fry, who went into immediate possession, and held it for more than seven years. Shehee foreclosed his mortgage in 1859, and execution issued thereon, and the execution was levied in November, 1870, more than seven years after Fry bought and went into possession. The mortgage was recorded on -the day of its execution. When the levy was made, Fry claimed the land; the jury found it subject, and a motion was made for a new trial, on many grounds; the motion was overruled on all, and that refusal on all the grounds is assigned for error here.

1, 2. The first three grounds may be considered together. They are that the'verdict is contrary to the law, the evidence and the charge of the court. It is not disputed that if Fry bought with actual notice of this mortgage, his seven years’ possession, with deed from Gaulden, would not work a prescriptive title in him so as to defeat the mortgage. There is evidence enough in the record to sustain the verdict in this view of the law in our judgment. The brother of the plaintiff bought the land for him, and was informed of the incumbrance upon the land; it was his duty to inform his principal; his, the agent’s, conscience was charged with this notice, and notice to the agent in the line of the business entrusted to him and within the scope of his authority, is notice to the principal. So that in this view of the law, even should we hold that in this case actual notice is necessary to charge the conscience of the purchaser, there is sufficient evidence to sustain the verdict as not being contrary either to the law or to the charge of the court, or to the evidence.

3. But we do not rest our judgment upon the application of the law to the facts of this case upon this legal principle which is conceded by the counsel for the plaintiff in error to be correct. We hold that no tenant of lands holding under the mortgagor, deriving his title from him, can acquire a prescriptive title as against the mortgagee, if that mortgage has been recorded within the time prescribed by law, and is valid and legal in other respects. It is true that this court has decided, in Wright vs. Smith, 43 Georgia, 292, and in Garrett vs. Adrian, 44 Georgia, 274, that where the same feoffor sells laud to A and B, and A lias the older deed, and that deed properly recorded, and B has gone into possession, and held the land for seven years, exercising acts of ownership over it, B's prescriptive title is good against A’s prior deed. The doctrine is that B must have actual notice, and the constructive notice of the record of A’s deed does not affect B’s conscience so as to make his adverse holding unconscientious and fraudulent against A. But in those cases B’s possession is adverse to A; the titles of the two men are wholly in conflict; they both claim the absolute fee. The very moment B entered as landlord and set up ownership, A is notified that one is in possession of his land which he has bought; that he is not there as his tenant, but is on the land without his authority and holds adversely to him. Hence, the moment B enters thus, no matter from whom his deed comes to him, even though it be from A’s feoffor, he holds adversely and his prescription begins, and if A let him remain in possession seven years uninterrupted, A’s older and otherwise better title is destroyed by the new-born prescriptive title of B.

But a mortgagee has no title to land in Georgia. The title never passes out of the mortgagor into him. It remains in the mortgagor, and the mortgagee has a mere lien or security on the laud for his debt. He has no right of entry. He cannot maintain ejectment, and as he cannot eject the person in possession of the land, it is difficult to see how that possession is adverse to him, and therefore how any prescriptive right can be acquired against him. When the mortgagor sells the land, he sells all the title he has. That title is the fee, but the fee encumbered by a security for debt, a lien or charge on the land for the purchase money in the case at bar, called a mortgage. The purchaser gets that title, but he gets it exactly as the feoffor had it — own onere, encumbered by the mortgage. It is true, that this court, in the case of Stokes, administrator, vs. Maxwell et al., 53 Georgia Reports, 657, held that the purchaser from a vendor other than the mortgagor and in possession of land seven years, acquired a prescriptive title against the mortgagee; but that case rests upon the principle that such purchaser entered not under the 'title of the mortgagor, not as his vendee at.all, but as the vendee of a stranger to the mortgagor, and therefore he enters adversely to the title of the mortgagor and the lien of the mortgagee, and holds adversely to both. The title he has bought is not encumbered with the lien; there is no privity between him and the mortgagee; he buys free from all incumbrances and mortgages, and holds adversely to the mortgagor’s title, its rights and appurtenances, liens, encumbrances and mortgages. The court expressly says: “If it had been shown that Sutherland, and those under -whom the claimant derives his title, had purchased the land from Gilbert, the mortgagor, subsequent to the date of the mortgage, then the claimant would have been a privy in the estate with the mortgagor, and have held the land subject to the mortgage, and could not set up a title by prescription as against that mortgage lien, for the reason that he went' into possession of the land under a title which was encumbered with that lien :” Stokes, administrator, vs. Maxwell et al., 53 Georgia Reports, 657. It is said that these words are obiter dicta, but they are not. The whole question was discussed and decided, and it is the unanimous judgment of this court and binding upon us now. If it were not, we concur in the principle of the decision, and would so hold the law for the reasons above given. It seems to us quite clear that Fry bought the title of Gaulden; he got that title; he holds it- now; nobody disputes that the fee is as completely in him as it was in Gaulden ; every right that Gaulden had he now holds, and the only encumbrance upon his title is the mortgage lien or security for the purchase money which was given by Gaulden and inhered in the title which Fry bought.

4. The fourth and twentieth grounds of the motion for the new trial may also be considered together. They are to the effect that after the judge had been requested to give to the jury his charge in writing, he added verbally to the requests of the plaintiff in fi. fa.; and also at the request of claimant or plaintiff (the judge says that he does not remember which) he added verbally to his written charge. He was requested by the claimant to put his entire charge in writing, and when he gave the written request of the plaintiff to the jury, and added verbal remarks to those requests, we think he erred; and when, at the request of somebody, he .added to his charge by oral remarks to the jury without the assent of claimant’s counsel, who had made the demand that the whole charge be put in writing, the error is palpable. Our Code is very plain. The judge is positively required to put his charge in writing on the demand of either party; and he is required to file this loritten charge in office for the inspection of all concerned. PIow can he file a written charge in office when a part of it only is written and the rest is in his memory? The great object of the statute is to prevent disputes between the judge and counsel as to what was the charge; and the only way to prevent them is to require the courts to conform rigidly to the statute. Indeed, the better practice would be for the judge to put every charge in every case of any importance in writing. It may be a little troublesome and laborious, but it would avoid much wrangling and controversy, and sometimes a good deal of hard feeling, and would make the practice more pleasant both for bench and bar, and insure fairness in exceptions and assignments of error here. This, however, is mat.ter of taste and discretion; but when either party requires the charge to be given in writing, it then becomes matter of positive law, and it is error to make any portion of the charge orally. It is no reply to say that the oral charge was more favorable to the complaining party than to the other side. The oral charge, as certified by the court may be, but the question is, what was that oral charge? The court certifies one thing; the counsel maintains that it was another; the certificate of the judge rules in this court, and the whole benefit of this remedial statute is lost to the counsel: Code, sections 244, 245.

5. The fifth ground for new trial is that the court admitted the interrogatories of Drury Ranbo over the objection that tliey did not show the residence of the witness. The interrogatories were taken by consent under the act of 1873; the objection was not to any answer of the witness; and we think that they were properly admitted: Code, section 3891.

6. The sixth ground is that the court having, at the instance of claimant, ruled out another set for the same witness on the same ground, but where the interrogatories were sued out regularly under the general law, the court refused, after the argument had commenced, to allow the claimant to read them, thus ruled out, to contradict the statement of the witness in the other set. We think the court did right. Counsel for claimant should have examined both sets, and adopted his line of policy before he made his motion to rule out. At all events, it is difficult to see how illegal testimony becomes legal because it is offered to impeach a witness.

7. The seventh ground is that the court erred in forcing claimant to trial under these facts. It had been agreed by counsel, and assented to by the court, that the issue docket should be called first, the equity docket next, and the claim docket last; and counsel for claimant, living in Macon, was surprised when this case was called on the issue docket, and not ready for trial on law or facts. It appears that this case was on the issue docket — it seems to have been there for some time — it was the duty of counsel to have known where it was, and when he agreed to the order of trial he would have known when he would be required to meet this case. We see no error here.

8. The eighth ground is that the court overruled claimant’s motion for a continuance. This motion was based upon four grounds: 1st. That the claimant had sued out interrogatories for plaintiff; that these interrogatories were in the nature of a bill for discovery, and were not fully answered. The questions were propounded in the ordinary way; the plaintiff was examined as an ordinary witness; he was not required to answer to the best of his knowledge, information and belief, as in an equity proceeding, and we think the motion was properly refused on this ground.

9. 2d. That he had sued out interrogatories for two of the brothers of claimant; that these were not fully answered, and in this particular were defectively executed. The defect was waived by the plaintiff and the interrogatories read. The only material matter; which claimant wished to prove by these witnesses, in the view of the court below, was that the purchaser had no notice of the mortgage, and about that the witnesses were not questioned. The other facts were proven sufficiently by other witnesses, and no harm was done. Counsel, who made the motion, did not state the facts which he expected to prove as showing no notice. This ground was properly overruled.

3d. That two witnesses were absent, who lived in the county when subpoenaed, one of whom lie knew was trying to rent land in the county the year of the trial, and, that so far as he. knew, they were still in the county, and the evidence was material. We think the court erred in not continuing the case on this ground.

10. 4th. That Bruton, administrator of Gaulden, had died, and claimant wished to make the legal representative of Gaulden a party to get in ah equitable defense that said Bruton had colluded with plaintiff to defraud claimant; that large sums had been paid by him to plaintiff, and never credited ;. that he had wasted the estate of Gaulden, etc., etc. We think the motion on this ground was properly overruled. We cannot see how the legal representative of Gaulden was a necessary party to enable claimant to put in this defense. He had the right to show, as the pleadings stood, any payments that ought to have gone on thejí. fa.¡ and any fraud of plaintiff with anybody, by which he was damaged as to this incumbrance upon his land.

11. The ninth ground is that the fi. fa. was against Bruton, administrator of Gaulden, and not as administrator of Gaulden, and the court erred in admitting it in evidence, as it thus, iu law, was against Bruton individually, and not'as administrator. The language of the fi. fa., taking it altogether, shows that it must be an execution against Bruton as administrator, and the ruling of this court at this term in the case of Jennings, administrator, vs. Wright & Company, is to the point that when such is the case, the omission of the little word “as,” will not vitiate the process of the court.

12. The tenth ground is that the court erred in admitting the mortgage without the rule nisi and rule absolute. We think that the mortgage fi.fa. sufficiently identified the mortgage as that on which it was issued, and the fi. fa. was presumptive evidence that the foreclosure had been regular. If the claimant wished to show otherwise, he had the right to introduce the whole record.

13. The eleventh ground is that the court charged the jury that the record of a mortgage made in time is notice to all the world. We think the charge law.

So as to the twelfth ground. We think that the lien of a mortgage is good for twenty years, and that it may be foreclosed any time Avithin that period, and that the court charged correctly.

As to the thirteenth ground, we think that if the mortgage execution sufficiently identifies the mortgage as its foundation the lien does relate back to the date of the mortgage, and Ave see no error in the charge to that effect.

The fourteenth ground, Ave think also untenable. The court charged to the effect that land held by perfect title from the state down or by prescription, may be subject to a mortgage, if the mortgage was made by the vendor under whom the tenant claimed title. We think the charge legal.

We see no error in the charge complained of in the fifteenth ground, “that actual notice of a mortgage lien created by the maker of the color of title, under which the claimant bases his prescription, will prevent any number of years’ possession defeating said lien.” We understand the court to mean within the twenty years that the mortgage is alive.

14. The charge complained of in the sixteenth ground is to the effect that if the creditor indulges the debtor, such creditor being mortgagor, and the debtor mortgagee, to the detriment of purchaser of mortgaged property for value, for a consideration, until the debtor becomes insolvent, it makes the purchaser’s title good; but if the indulgence is without consideration, it does not, unless the facts show fraud. We see no error in this charge.

The seventeenth ground relates to the verdict being against the charge, and has been already alluded to in the former part of this opinion. We see no error in the verdict. The same may be said of the eighteenth and nineteeth grounds. They relate to the law on the main question first decided, and need not be repeated.

15. In looking through this whole record, we see but two errors of the court, in our judgment; one, the giving his charge in part orally, when required to put the whole in writing, and the other the refusal to continue for the absence of the two witnesses subpoenaed. As, however, under the view of the law of the case we have taken, and the undisputed facts, the verdict must be what it now is, we do not grant the new trial, but affirm the judgment.

Judgment affirmed.