Moody vs. Morgan.

JACOB MOODY, plaintiff in error, vs. THOMAS MORGAN, defendant in error.

A bond with security given to a plaintiff in attachment, by the defendant, with a condition to produce the property levied on at the day of sale, is not the bond required by the 11th section of the Act of 1856.

Attachment, from Appling county. Decided by Judge COCHRAN, March Term, 1858.

An attachment sued out by Thomas Morgan, against Hector McDuffie was levied by the Sheriff on a steamboat, the property of the said McDuffie. This steamboat Me Duthie replevied, and gave a bond to the Sheriff with Jacob Moody as security "for the amount of the judgment and all costs that he may recover in said case in the event said boat is not delivered on the day of sale."

When the cause came on for trial, Jacob Moody moved the Court to set aside the said bond, and to be discharged as security from the same, on the ground that the bond was not in compliance with the 11th section of the Act of 1856, in relation to attachments and garnishments, for that the said bond was not conditioned to pay the amount of the judgment and costs that he might recover in the case, but conditioned that the defendant should pay the plaintiff the amount of the judgment and costs that he might recover in said case, only in the event that the said property so levied on, was not forth-coming at the time and place of sale.

This motion the Court below overruled, and the said Jacob Moody by his counsel excepted.

MCLENDON & ACKINGTON, for the plaintiff in error.

SESSIONS, contra.

Moody vs. Morgan.

By the Court.--MCDONALD, J. delivering the opinion.

The 11th section of the garnishment and attachment Act of 1856, (Pamphlet 27,) makes it the duty of the officer levying an attachment, to deliver the property levied on to the defendant, upon his giving bond with good security, payable to the plaintiff in attachment, obligating themselves to pay the plaintiff the amount of the judgment and costs that he may recover in said cause. It is an absolute bond, without a condition of any sort, which the statute requires. A bond for the payment of the debt and costs absolutely. The undertaking of the obligors to the bond under consideration, is for the forth-coming of the boat levied on, and delivered to the defendant, on the day of sale.

There is a great difference between a bond for the payment of a judgment absolutely; and one for the production of property liable to it, on the day of sale. In the first case, there is no condition, in the second, there is a condition, and that condition is of the essence of the obligation. It cannot be rejected without annulling a most essential part of it, which cannot be done.

Prior to the passing of the Act of 1856, the Sheriff, if he thought proper, might have delivered the property levied on by him by virtue of a fi., fa. or other legal process, to the defendant, and a bond taken by him for the delivery of it on the day of sale, or at any other time, was declared to be good and valid in law and recoverable. Cobb 534.

The bond in this case does not conform to the Act of 1829, in all respects, but the condition of it is in precise accordance with that of bonds legalized by that Act. It certainly is not the bond required to be given by the Act of 1856, under which it is contended that it is good and valid; and the attachment law must be strictly construed. The judgment the Court below must be reversed.

Judgment reversed

Sutton vs. Sutton.

ABNER SUTTON, plaintiff in error, vs. EBENEZER SUTTON, defendant in error.

[1] When the mortgagor against whom a rule is taken, to foreclose a mortgage, makes no resistance, it is not competent for a third person to interpose objections; neither will the Court itself of its motion do so.

[2] A discrepancy between the debt and the mortgage given to secure it, may be explained by parol proof; and the creditor will not be driven into equity for that purpose.

Mortgage from Bryan county. Decided by Judge FLEMING, April Term, 1858.

This was an application to foreclose a mortgage which had been made of a tract of land by Ebenezer Sutton to Abner Sutton, for the better securing the payment of certain promissory notes.

Upon the hearing of the application to render absolute the rule nisi for foreclosure, which had been granted, the mortgagor made no objection, but one William Strickland prayed to be made a party defendant, and opposed the making of the rule absolute, on the following grounds:

1st. That this Court cannot grant the rule absolute, because the mortgage under which foreclosure is sought to be had, does not specify and locate any particular tract of land; the only description of the premises mortgaged, contained in said deed of mortgage, being too indefinite.

2d. Because the tract of land mentioned in the rule nisi is not the tract mentioned in the deed of mortgage.

3d. Because the tract of land described in the said rule nisi, is not the property of the defendant Ebenezer Sutton, but the property of William Strickland.

4th. Because the notes mentioned in the said rule nisi, are not the notes mentioned in the said mortgage.

5th. Because there are interlineations which are unaccounted for and unnoticed, affecting the validity of the said mort gage.

Sutton vs. Sutton.

Plaintiff's attorneys objected to the said William Strickland being heard and it was agreed at the suggestion of the Court, that the rule should be made absolute, but that such judgment of foreclosure should remain subject to the legal opinion of the Judge.

The Judge subsequently decided that the rule absolute so granted should be set aside.

Plaintiff's counsel thereupon moved the Court to allow him to introduce parol testimony to explain the discrepancy between the notes and mortgage, and to show that the mortgage was intended to secure the notes. This motion the Court refused on the ground that after the setting aside the judgment of foreclosure, the case was out of Court, and that the testimony was inadmissible under any circumstances.

Plaintiff's counsel thereupon filed his bill of exceptions, saying that the Court erred:

1st. In deciding that said William Strickland had no right to be heard in said cause by himself or counsel.

2d. In ruling that parol evidence was inadmissible to explain the discrepancy between the notes offered in evidence and those mentioned and recited in the mortgage, and to show that the notes offered in evidence were the notes intended to be secured by said mortgage: the mortgagor being in Court and not objecting to such evidence.

3d. In setting aside said rule absolute, and in refusing to allow plaintiff's counsel to introduce evidence to explain the discrepancy aforesaid, and to show that the notes offered were the notes intended to be secured by said mortgage on the day said decision was filed.

GAULDEN, for plaintiff.

WARD; OWEN & JONES, contra.

By the Court.-LUMPKIN, J. delivering the opinion.

A rule nisi had been taken and duly served to foreclose a mortgage; one William Strickland by his counsel.n

Sutton vs. Sutton.

tervened, on application to make the rule absolute, and insisted that there were such discrepancies between the debt and the mortgage, and vagueness in the description of the land, that no foreclosure could be made. Other objections were interposed as to interlineations in the mortgage deed, &c. The Court granted the rule absolute, but took time to consider the questions made in the case. The mortgagor himself was present in Court, making no objection to the proceeding; and it does not appear that Strickland was any way interested.

At the next Term of the Court, the Judge held that the discrepancy was fatal; neither could it be explained by parol proof, at law; but that the mortgagee must go into equity to reform the instrument. The Court also decided that Strickland could not be heard, but that he would of his own accord refuse the motion.

[1.] We cannot give to this judgment our approval. Why go into chancery when the mortgagor acknowledges by his silence at least, that the mortgage was given to secure the indebtedness included in it? If he was satisfied, who else had any right to gainsay the foreclosure? No one. And we are clear that the Court erred in overruling the motion. Should it turn out that there was fraud and collusion between the parties, which is not pretended, the judgment can be attacked hereafter by any body whom it seeks to disturb, except the mortgagor himself. Sufficient unto the day is the

evil thereof.

I would merely add, that by a recent Act of the Legislature, (Laws, 1857, p. 58,) mistakes in grants may be shown by parol proof, in suits both at law and in equity. It is needless to attempt to exclude parol testimony, as to mistakes in other instruments.

VOL. XXV.-25

Judgment reversed.