Sams v. Derrick

30 S.E. 668, 103 Ga. 678, 1898 Ga. LEXIS 226

• Court: Supreme Court of Georgia
• Decided: March 23, 1898
• Status: Published

Opinion

Fish, J.

Derrick held four written instruments, all bearing the same date and-purporting to have been executed by Sams and Henson, each embracing a note payable to Derrick, and a mortgage, to secure the same, upon the same real estate. After all the notes had matured, he sought, by a single proceeding in the superior court, to foreclose all of the mortgages together. . On the trial of the case, the defendants, Henson and the administrator of Sams, made a motion' to dismiss the proceeding, “on the grounds, that the plaintiff was attempting to foreclose four mortgages in one rule, and because there was no sufficient description of the property in the application, rule or mortgage.” The second ground of this motion, relating to the alleged insufficiency of the description of the property, is covered'by the decision of this court when the case was here before. 98 Ga. 397. The ruling of the court on the last trial of the case, on this point, was in conformity to the decision then rendered.

1. The indebtedness, represented by the notes and secured by the mortgages, arising ex contractu between the same parties, the mortgages all bearing the same date and covering the same real estate, the plaintiff had the right, after all the notes had matured, to foreclose all of the mortgages together in a single proceeding. Civil Code, §4944. No right of the defendants could be injuriously affected by the plaintiff’s pursuing this course; but it was to their interest for him to bring only one foreclosure proceeding, instead of harassing them with four separate actions, thereby increasing court costs, and putting them, if they saw fit (as they did) to litigate the matter, to the trouble and expense of defending four suits in place of one.

2. One of the defendants, tlie administrator of Sams, pleaded that his intestate, at the time of executing the mortgages, was mentally incapacitated to make a contract: that “he was unable to read the contract, that it was never read over to him nor understood by him, and that if the same had been read over to him he could not have understood it.” The other defendant, Henson, pleaded, first, that “he never signed the notes and mortgages sued on, nor did he authorize any one to do so for him, except as a witness”; second, “that he [had] no title to the land,” and therefore the plaintiff had no right to foreclose the mortgages against him. No other pleas appear from the record to have been filed in the case. It is apparent, therefore, that the court did not err in refusing to allow “defendants to prove that the consideration of the notes and mortgages had wholly failed.” Such proof was clearly inadmissible under these pleas.

3. The verdict rendered was warranted by the evidence, and there was no error in denying a new trial.

Judgment affirmed.

All concurring, except Cobb, J., absent.