
    9342.
    McLendon et al. v. Ricks, for use, etc.
    Decided March 12, 1918.
    Complaint; from city court of. Swainsboro—Judge Kirkland. September 24, 1917.
    I. L. Price, for plaintiffs in error. W. F. Grey, contra.
   Broyles, P. J.

1. Under the facts of the case the court did not err in excluding from the evidence the common-law execution.

2. This was a suit on a note given in part payment for a meat-market outfit; to which the defendants pleaded total want of consideration. The evidence showed that there was an outstanding mortgage on the property at the time of its sale to the defendants, which was foreclosed subsequently to the sale, and that the property was bought in by a third person, and the defendants were deprived of its possession. Upon the trial there was a sharp conflict in the evidence as to whether the vendor of the property, at the time it was sold to the defendants, warranted the property against this mortgage and promised them to • pay it off. This material fact being in dispute, the court erred in directing a verdict for the plaintiff. Although the mortgage was not recorded, it was .a valid lien upon the property, as the evidence shows that the purchasers had actual notice thereof at the time of the sale.

Judgment reversed.

Bloodworth and Sarwell, JJ., concur.  