Lane v. Partee

WARNER, J. The error assigned to the judgment of the. Court below, is the overruling the motion for a new trial. In our judgment there was no error in the refusal • of the Court to continue the cause for the purpose of allowing Lane to traverse the return of the sheriff, as to the service of the bill on him, or in refusing to allow the sheriff’s return of service to be traversed at the trial term of the case, after Lane had appeared in the cause as a defendant, and participated in the litigation. The Court was requested to charge the jury, “that unless complainants showed that Thrasher had notice of the trust, (if any,) in the land, he must recover the amount of his mortgage fi. fa.” The Court refused so to charge, but on the contrary charged the jury, “that at their' option, the cestui que trusts might follow their fund wherever it could be traced, or ratify the use made of it by the trustee, and that if a portion of said land was bought with their fund, they could follow the fund so invested, and the trustee could not create a lien upon the trust estate.” In view of the facts of this case as shown by the record, we are of the opinion, that the Court below erred in not charging the jury as requested, and in the charge as given to the jury in relation to this branch of the case. Thrasher claimed to be a bona fide mortgagee of the land from Lane, who had the legal title thereto, for a valuable consideration, without any notice of the trust which the complainants were seeking to enforce against the land. A bona fide mortgagee, to tlje extent of his interest in *the land mortgaged, stands upon the same footing as any other bona fide purchaser without notice of the trust, and the Court should have so charged the jury, the more especially as this principle of the law was distinctly recognized and adjudicated by this Court between the same parties, in the case reported in 37th Georgia Reports, 392, ordering,, the injunction granted to restrain Thrasher, the mortgagee, from enforcing his mortgage against the land to be dissolved. Let the judgment of the Court below be reversed.