
    Lorenzo D. Monroe, Jr., plaintiff in error, vs. E. A. Castleberry, defendant in error.
    Where an affidavit of illegality was filed to a mortgage execution on the ground that it had been paid, it was error to allow, upon the trial of the issue thus formed, a motion to be made to dismiss the levy and the execution on the ground that the mortgage was upon a growing crop, and, therefore, void.
    Illegality. Mortgage. Practice in the Superior Court.
    Before David H. Pope, Esq., an attorney at law, and Judge prohao vice.
    
    Dougherty Superior Court.
    April Term, 1873.
    
      Eor the facts of this Case, see the decision.
    L. P. I). Warren ; G. J. W right, for plaintiff in error.
    William E. Smith, for defendant.
   "Warner, Chief Justice.

It appears from the bill of exceptions and record in this case, that an execution had issued in favor of the plaintiff, on the foreclosure of a mortgage of personal property which had been levied on six bales of cotton. The defendant filed an affidavit of illegality to the execution on the sole ground that the claim on which the judgment and execution was founded had been paid off, with the exception of $75 00, which last named amount she tendered in satisfaction thereof. On the trial of the issue thus formed, the defendant made a motion to dismiss the levy and mortgage fi. fa., on the ground that it was founded upon a mortgage given and made upon a growing crop, and that a mortgage could not be made and was not good upon a growing crop, the crop not being a thing in esse, which motion was sustained by the Court, and the plaintiff excepted. The defendant did not take this ground of illegality in her affidavit, even if it would have been a valid ground, but, on the contrary, impliedly admitted that the mortgage was a valid mortgage, and that the property levied on was covered by it when she stated as her only ground of illegality to the proceeding, that the claim on which the same was founded had been paid off, except $75 00, which she then proposed to pay, and that was the only issue presented to the Court for its consideration and judgment by the defendant’s affidavit of illegality, and it was error in dismissing the plaintiff’s levy and Ji. fa., on the statement of facts contained in the record.

Let the judgment of the Court below be reversed.  