Morris v. Winkles , 88 Ga. 717 ( 1892 )

Bleckley, Chief Justice.

1. By statute ordinary judgments have a lien from their date upon all property, real and personal, of the defendant, then owned or afterwards acquired. "Where a levy is made under a judgment of that class, it suffices, therefore, to prove possession in the defendant at the time of the levy, or at any time subsequent to the rendition of the judgment, as a basis for presuming title to the property and attachment of the judgment lien upon it. But the rule does not apply to mortgage executions. The lien is lodged in the mortgage, and not in the levy, execution or judgment of foreclosure. Richards v. Myers, 63 Ga. 762. In order for the lien of the mortgage to attach upon the property, title must have been in the mortgagor when the mortgage was executed, or he must have had possession then so as to raise the presumption of title. Butt v. Maddox, 7 Ga. 495; Gunn v. Jones, 67 Ga. 398. It is not sufficient to prove possession 'in the mortgagor at the time of the levy. Nor would evidence that he returned the property for taxation in the year the mortgage was executed and in the preceding year, amount to anything more than mere declarations of ownership by him. Smith v. Haire, 58 Ga. 446. To render his bare declarations of any value against the claimant, they would have to be made whilst lie was in possession. Unless possession appeared in Ivey v. Colquitt, 63 Ga. 509, that ease, in holding the tax returns admissible, is of doubtful correctness. But there was other evidence to support the verdict. So says the opinion. In this present case, there was no evidence whatever of any possession prior to the date of the levy. That date was September the 30th, 1886, long after the tax returns were made. The additional evidence relied upon to make out a prima facie case for the plaintiff was an alleged admission by the claimant (she being the mortgagor’s wife) that her husband had told her he had made arrangements with the plaintiff for her to trade with the plaintiff at his store, and was going to give a mortgage on .the land now in controversy, telling her further that she and another person could trade with the plaintiff to the extent of $20.00 worth. To this admission was added the fact that she and the person named actually bought at that time about $16.00 worth of goods, and afterwards, $10.00 worth more. She testified that she never made the admission, and her husband testified that he never told her that he was going to give any mortgage to the plaintiff. The dealing of the plaintiff with the husband was on his account and not on the wife’s account. It does not appear what kind of goods the wife purchased, or that the price of them was covered by the mortgage. Certainly the mortgage was not given for them alone, for their price, at the most, was about $26.00, whereas the principal of the mortgage fi. fa. is $60.00. We see no ground for estopping the wife by her admission, even if she made it; and unless it was allowed to have the force of an equitable estoppel, it would be no substitute for proof of title or possession in the mortgagor at the date of the mortgage. There is no rule of evidence which would render a more oral admission of the claimant sufficient, in a claim case, to establish title to land in the defendant, whether a debtor by ordinary judgment or by a mortgage foreclosed. Under our law, the wife could not validly consent to the mortgaging of her property for her husband’s debt; and here it does not appear that the land was mortgaged- for her own debt, or even that any debt as to her was created. The goods she obtained may have been such as the husband was bound to supply» As he made arrangements for their purchase, the presumption is that they were sold on his credit, and there' is no evidence to the contrary. It is true that the wife stood at the trial on her claim alone, and did not show, nor attempt to show, title in herself; but she was a statutory claimant, and the burden of making a prima facie case was upon the plaintiff. The very question is, whether such a case was made; for until that was done, she could not be called upon to exhibit her title. ~We think the plaintiff stopped short of enough to change the onus.

2. The rejection of the evidence offered by the claimant to prove that another mortgage was executed, and inferentially that the one foreclosed was not executed, was proper. It does not appear that the witnesses sought to be examined were the subscribing witnesses to any mortgage' whatever. Proof merely that another mortgage was executed would not put any direct negative upon the execution of the mortgage which was foreclosed. But even if such would be its effect, the claimant had no right to attack the judgment of foreclosure, she, so far as appears, not claiming title under the mortgagor. That judgment adjudicates the fact that the mortgage foreclosed was executed. If the mortgagor was bound by the judgment (and he certainly was), it ought to prevail against the claimant as well as against him, if the land belonged to him at the date of this’ mortgage, and if since that time he has not conveyed it, or any interest in it, to the claimant. All the cases heretofore decided will harmonize with this position. Claimants may attack foreclosed mox-tgages which would exicumber or impair their title, as derived from or through the mortgagor, but not such mortgages as merely compete with title dex’ived from another source. They must disclose their privity with him before they caxi comiilaixx that he had a defence which he failed to set up.

The coui’t erred in xxot granting a new trial upon the general grouxxds in the motion. Judgment reversed.