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DERRICK v. SAMS, administrator

Supreme Court of Georgia1896-05-04
98 Ga. 397

Summary

Holding. The judgment of the trial court was reversed. The mortgages were not inadmissible for insufficient property description where the description provided means of identification and parol evidence could clarify ambiguities; the mortgagee's objection to the year's support award did not bar foreclosure; and the validity challenge based on the mortgagor's condition and lack of understanding was properly before the court.

Derrick brought a foreclosure action against Sams' estate based on mortgages. The trial court excluded the mortgages from evidence, finding the property description insufficient and refusing to allow parol evidence to clarify it. The appellate court disagreed, holding that the description—identifying the state, county, district, lot numbers, and noting the land was purchased by a specific person from the mortgagee—provided adequate means of identification. Parol evidence was properly admissible to resolve ambiguities in the description.

The estate also raised two defenses. First, it argued that because the mortgagee objected to the ordinary court's award of the land as a year's support for the widow and children, the mortgagee was barred from foreclosure. The court rejected this defense, holding that objecting in the ordinary court did not estop the mortgagee from obtaining a judgment; the mortgagee could then face the support award if attempting to enforce through levy. Second, the estate alleged the mortgagor was elderly, sick, under the influence of opiates, unable to read, and incapable of contracting. The court upheld the trial court's refusal to strike this plea, recognizing it raised a valid challenge to contract validity.

Summary generated by law.co from the public-domain opinion. The opinion text itself is public domain.

Key issues

  • Sufficiency of property description in mortgage instruments
  • Admissibility of parol evidence to clarify ambiguous land descriptions
  • Effect of objecting in probate court on foreclosure rights
  • Enforceability of mortgages executed by mortgagor lacking capacity

Procedural posture

Derrick appealed from a trial court judgment excluding mortgages from evidence and sustaining the administrator's pleas in resistance to foreclosure.

Authorities cited

No cited authorities resolved to law.co cases yet.

Opinion

majority opinion

Simmons, Chief Justice.

1. Derrick sought to foreclose certain mortgages purporting to have been given by Sams, and the administrator of Sams filed a p-lea in resistance to the proceeding. On the trial of the case the court, upon objection by counsel for the defendant, excluded the mortgages, on the ground that the description therein of the land mortgaged was insufficient, and refused to receive parol evidence offered to further identify the land. The description of the land was: “Parts of lots of land Nos. 22 and 38 in the 5th land district of Kabun county, Ga., it being the land purchased by J. L. Henson of J. E. Derrick.” We do not think this description, as a whole, was so totally defective and uncertain as to render the mortgages inadmissible in evidence. It is not essential that the description should completely identify the land. A description should not, as a matter of law, be treated as insufficient if it furnishes-the means of identification. The description above quoted does this. It gives the State, county, and district in which the land is situated, and the numbers of the lots, and says. that it is “the land purchased by J. L. Henson of J. E. Derrick.” By the aid of the parol testimony offered by the plaintiff, the land could easily have been identified and its boundaries ascertained, so that the judgment of foreclosure might fully describe it. The description being ambiguous without the aid of such testimony, the testimony offered was clearly admissible to explain the ambiguity. See Shore v. Miller, 80 Ga. 93, where the description was similar to the one in question here. See also Jennings v. Bank, 74 Ga. 787, 788, and cases cited; Parler v. Johnson, 81 Ga. 255; Wiggins v. Gillette, 93 Ga. 23; Broach v. O’Neal, 94 Ga. 475(3).

2. One of the defenses set up by the administrator was that the land in question had been set apart by the court of ordinary as a twelve months support for the widow and children of the intestate, over objections filed by the mortgagee, and that the mortgagee was thereby concluded and his right to foreclose the mortgage barred. This plea was demurred to, and the demurrer overruled. ¥e think the demurrer should have been sustained. The fact that the plaintiff appeared in the court of ordinary and objected to the setting apart of the land as a year’s support does not estop him from obtaining a judgment against the estate of the mortgagor or against the land. He had a lien on the land, and was entitled to a judgment setting up that lien. If he should undertake to enforce the judgment by levying upon the land, he might then be met by the judgment of the ordinary setting apart the land as a year’s support.

3. Another of the pleas filed by the administrator alleged that the intestate, at the time of executing the mortgages, “was very old and sick and unable to sign his name . . . but made his mark, that he was heavily under the influence of opiates and at the time was in a comatose state . and was wholly unable to make any sort of contract,” also that the mortgagor was unable to read the contract, that it was never read over to nor understood by him, and that if the same had been read to him he could not have understood it. We think it was clearly not error to refuse -to strike this plea. If the allegations contained therein are true, no court would hold that the mortgages were valid contracts. Judgment reversed.