Murphy v. Purifoy

Trippe, Judge.

1. The following decisions show that, under the two instruments executed by the parties in this case, made at the time they were, the relation of mortgagor and mortgagee existed between them: 34 Georgia, 369 ; 36 Ibid., 138; 40 Ibid., 39 ; 49 Ibid., 133. See Code, section 3809.

2. The debtor charged in the bill that the deed was, without his consent, illegally altered in a material part, and a cancellation of the instrument was prayed. The verdict recites these facts as found true, and declared the deed to be null and void. If this finding was sustained by the evidence, the creditor could not complain that the verdict for the debt which was found due, did not also grant a foreclosure to the extent of the land that was included in the mortgage before alteration: Code, section 2852; see Wheat vs. Arnold, 36 Georgia, 479. The fact that the debtor, believing he could not redeem the land, had surrendered the obligation to reconvey before he ascertained that the alteration had. been made, does not affect the case. Relief will be granted in such cases of mistake or ignorance as this: Code, sections 3117, 3125, 3126. This being so it is not necessary to discuss the exception taken to the charge of the court.

3. The evidence in the case was conflicting. It was exclu•sively the province of the jury to pass upon it. There is testimony directly supporting the verdict, and when that is so, it would require a strong case of an abuse of discretion on the part of the judge who refused to set the verdict aside to authorize this court to grant a new trial on the ground that the verdict is contrary to the evidence.

Judgment affirmed.