Mills v. Sanders

Wade, J. 1. The mortgage and the mortgage fi. fa. were before the court, and there was positive testimony that the property described in both was in the possession of the mortgagor at the time the mortgage was executed. There was also testimony that when the deceased defendant in fi. fa. was executing the mortgage he positively and distinctly asserted his absolute title to all the property covered by the mortgage, and there was evidence that he had declared the title thereto to be vested in the claimant, and the evidence as a whole was conflicting as to the actual' ownership' of the property. Upon the direct testimony and some circumstances in proof tending to support the contention of [299] tlie' plaintiff, the jury found against the claimant; and since there was some evidence to support their finding, this court can not, on the general grounds of the motion for a new trial, set aside the verdict. Decided May 5, 1915. Levy and claim; from city, court of Way cross — Judge McDonald. May 11, 1914. Bolling Whitfield, for plaintiff in error. Parker & Walker, contra. 2. The plaintiff in error complains specially that the court erred “in not fully and clearly charging the jury on the issue of the claimant that it was her property, by not stating to the jury the contention of the claimant based upon the evidence for the claimant.” The court charged the jury: “When she [the claimant] filed that claim . . to the mortgage fi. fa., that made an issue; and that is the issue for the jury to consider — whether the property is subject to the mortgage fi. fa., or that it is the property of the claimant, or that her right to said property is superior to that of the plaintiff in the mortgage fi. fa.” This charge distinctly stated the issue which the jury was required to pass upon, and it was not incumbent upon the judge to attempt a summary of the evidence, or to state the issue more fully in the absence of a timely written request. • Judgment affirmed.