Fry vs. Shehee. sary, and if the answers be legal on other grounds than those which have reference to technical points of the execution of the interrogatories, they may be read to the jury. 6. If two sets of interrogatories be sued out for the same witness by the plaintiff, and one set be ruled out at the instance and on motion of the claimant, as illegally executed, and the other set be admitted as legal, the illegal set cannot be used by the claimant to contradict and impeach the witness; the testimony excluded as illegal for one purpose, on motion of the claimant, cannot be invoked by him as legal for another. 7. Counsel are required to know on what docket their cases are entered by the clerk, and an agreement by them and the court that the dockets shall be called and tried in a certain order-that is, the issue docket first, the equity next, and the claim last-furnishes no good reason why a claim case entered on the issue docket should be postponed to the claim docket, although the counsel announces that he is not prepared on the law and the testimony, in consequence of the case having been called for trial sooner than he expected, it appearing that said claim case formed an issue for trial and was entered on the issue docket and on no other. 8. Interrogatories sued out by claimant for the plaintiff with the usual questions, and not requiring the plaintiff to answer to his information and belief as well as knowledge, are well answered if the plaintiff answers as any other witness from knowledge; if the plaintiff desires to probe his conscience, as in a bill for discovery, he must ask him to answer to the best of his information and belief as well as his knowledge. 9. Where interrogatories are sued out for witnesses who do not answer as much as counsel expected them to answer from his knowledge of what they would testify, and the witnesses are not interrogated upon the only point which cannot be proved by other evidence, and all defects to the execution are waived by the other side, a continuance ought not to be granted; but if two witnesses resided in the county when subpoenaed and resided there when counsel last heard from them-his client being a non-resident, and counsel making the showing—and the testimony is material, the case should be continued. 10. It is not necessary to make the legal representative of the defendant to the mortgage fi. fa. a party to show payments on the fi. fa., or fraud and collusion between a former administrator of the defendant and the plaintiff in regard to the fi. fa., or the mortgage; the claimant, in the claim case between the plaintiff in the mortgage fi. fa., and himself, may prove anything going to show that the execution is paid, or any part of it, and any fraud or collusion between the plaintiff and anybody, or any other equitable defense he may have, touching the mortgage and its interference with his claims to the land covered by it. 11. If it appear from the face of the execution that it is against the administrator, and not against the party individually, the fi. fa, is a good and valid valid process, though the little word, "as" be not prefixed to the word "administrator." Fry vs. Shehee. 12. It is enough for the plaintiff in fi. fa. to introduce to the jury his fi, fɑ. without the petition and the rules nisi and absolute; the claimant may introduce the balance of the record, if he wishes to do so; and when the mortgage is also introduced, if the fi. fa. identifies it as that on which it is founded, the lien of the fi. fa. will relate back to the date of the mortgage. 13. The record of a mortgage made in time is notice to the world; its lien is good for twenty years, and it may be foreclosed at any time within that period; and if the purchaser of the land covered by such a mortgage, hold by title from the mortgagor, whether that title be from the state down, passing through the mortgagor, or by prescription, the mortgage is good for twenty years against such purchaser. 14. If the mortgagee indulges the mortgagor for a consideration until he becomes insolvent, such indulgence will make the purchaser's title good; but if, without any consideration, he indulges him, such indulgence, unless the facts show fraud, will not relieve the title of the purchaser from the encumbrance of the mortgage. 15. Although the court may commit error on legal points complained of, this court will not grant a new trial, where it plainly appears, from our view of the law and the portion of the evidence undisputed by the parties, that the verdict in any event must stand. Prescription. Vendor and purchaser. Mortgage. Notice. Principal and agent. Adverse possession. Practice in the Superior Court. Charge of Court. Interrogatories. Evidence. Attorneys. Discovery. Continuance. Claim. Execution. Administrators and executors. Registry. New trial. Before Judge STROZER. Decatur Superior Court. November Term, 1874.. Reported in the opinion. J. C. RUTHERFORD, for plaintiff in error. BOWER & CRAWFORD; R. F. LYON, for defendant. JACKSON, Judge. Henry D. Shehee, in 1854, sold a tract of land in the county of Decatur to John P. Gaulden, and put him in possession thereof, taking a mortgage to secure the payment of the purchase money. John P. Gaulden sold this land in 1863 to Daniel Fry, who went into immediate possession, and held it Fry vs. Shehee. for more than seven years. Shehee foreclosed his mortgage in 1869, and execution issued thereon, and the execution was levied in November, 1870, more than seven years after Fry bought and went into possession. The mortgage was recordWhen the levy was made, ed on the day of its execution. Fry claimed the land; the jury found it subject, and a motion was made for a new trial, on many grounds; the motion was overruled on all, and that refusal on all the grounds is assigned for error here. 1,2. The first three grounds may be considered together. They are that the verdict is contrary to the law, the evidence and the charge of the court. It is not disputed that if Fry bought with actual notice of this mortgage, his seven years' possession, with deed from Gaulden, would not work a prescriptive title in him so as to defeat the mortgage. There is evidence enough in the record to sustain the verdict in this view of the law in our judgment. The brother of the plaintiff bought the land for him, and was informed of the incumbrance upon the land; it was his duty to inform his principal; his, the agent's, conscience was charged with this notice, and notice to the agent in the line of the business entrusted to him and within the scope of his authority, is notice to the principal. So that in this view of the law, even should we hold that in this case actual notice is necessary to charge the conscience of the purchaser, there is sufficient evidence to sustain the verdict as not being contrary either to the law or to the charge of the court, or to the evidence. 3. But we do not rest our judgment upon the application of the law to the facts of this case upon this legal principle which is conceded by the counsel for the plaintiff in error to be correct. We hold that no tenant of lands holding under the mortgagor, deriving his title from him, can acquire a prescriptive title as against the mortgagee, if that mortgage has been recorded within the time prescribed by law, and is valid and legal in other respects. It is true that this court has decided, in Wright vs. Smith, 43 Georgia, 292, and in Garrett vs. Adrian, 44 Georgia, 274, that where the same feoffor sells Fry vs. Shehee. land to A and B, and A has the older deed, and that deed properly recorded, and B has gone into possession, and held the land for seven years, exercising acts of ownership over it, B's prescriptive title is good against A's prior deed. The doctrine is that B must have actual notice, and the constructive notice of the record of A's deed does not affect B's conscience so as to make his adverse holding unconscientious and fraudulent against A. But in those cases B's possession is adverse to A; the titles of the two men are wholly in conflict; they both claim the absolute fee. The very moment B entered as landlord and set up ownership, A is notified that one is in possession of his land which he has bought; that he is not there as his tenant, but is on the land without his authority and holds adversely to him. Hence, the moment B enters thus, no matter from whom his deed comes to him, even though it be from A's feoffor, he holds adversely and his prescription begins, and if A let him remain in possession seven years uninterrupted, A's older and otherwise better title is destroyed by the new-born prescriptive title of B. But a mortgagee has no title to land in Georgia. The title never passes out of the mortgagor into him. It remains in the mortgagor, and the mortgagee has a mere lien or security on the land for his debt. He has no right of entry. He cannot maintain ejectment, and as he cannot eject the person in 'possession of the land, it is difficult to see how that possession is adverse to him, and therefore how any prescriptive right can be acquired against him. When the mortgagor sells the land, he sells all the title he has. That title is the fee, but the fee encumbered by a security for debt, a lien or charge on the land for the purchase money in the case at bar, called a mortgage. The purchaser gets that title, but he gets it exactly as the feoffor had it-cum onere, encumbered by the mortgage. It is true, that this court, in the case of Stokes, administrator, vs. Maxwell et al., 53 Georgia Reports, 657, held that the purchaser from a vendor other than the mortgagor and in possession of land seven years, acquired a prescriptive title against. the mortgagee; but that case rests upon the principle that Fry vs. Shehee. such purchaser entered not under the title of the mortgagor, not as his vendee at all, but as the vendee of a stranger to the mortgagor, and therefore he enters adversely to the title of the mortgagor and the lien of the mortgagee, and holds adversely to both. The title he has bought is not encumbered with the lien; there is no privity between him and the mortgagee; he buys free from all incumbrances and mortgages, and holds adversely to the mortgagor's title, its rights and appurtenances, liens, encumbrances and mortgages. The court expressly says: "If it had been shown that Sutherland, and those under whom the claimant derives his title, had purchased the land from Gilbert, the mortgagor, subsequent to the date of the mortgage, then the claimant would have been a privy in the estate with the mortgagor, and have held the land subject to the mortgage, and could not set up a title by prescription as against that mortgage lien, for the reason that he went into possession of the land under a title which was encumbered with that lien:" Stokes, administrator, vs. Maxwell et al., 53 Georgia Reports, 657. It is said that these words are obiter dicta, but they are not. The whole question was discussed and decided, and it is the unanimous judgment of this court and binding upon us now. If it were not, we concur in the principle of the decision, and would so hold the law for the reasons above given. It seems to us quite clear that Fry bought the title of Gaulden; he got that title; he holds it now; nobody disputes that the fee is as completely in him as it was in Gaulden; every right that Gaulden had he now holds, and the only encumbrance upon his title is the mortgage lien or security for the purchase money which was given by Gaulden and inhered in the title which Fry bought. 4. The fourth and twentieth grounds of the motion for the new trial may also be considered together. They are to the effect that after the judge had been requested to give to the jury his charge in writing, he added verbally to the requests of the plaintiff in fi. fa.; and also at the request of claimant or plaintiff (the judge says that he does not remember which) he added verbally to his written charge. He was requested |