Gardner, Dexter & Co. v. Moore, Trimble & Co.

51 Ga. 268

• Court: Supreme Court of Georgia
• Decided: January 15, 1874
• Status: Published

Opinion

McCay, Judge.

Section 1954 of the Code does say, “It (a mortgage of real estate) must be attested by two witnesses, and it must be recorded,” etc. But sections .1957 and 1959, part of the same chapter and the work of the same hand, contemplates that a mortgage not duly recorded, “or without due attestation,” may be good except as against bona fide purchasers without notice or subsequent liens not created by contract. And this was undoubtedly the law before the Code. In 17 Georgia, 295, this court held that a deed with but one witness was not void, notwithstanding the acts of 1760 and 1785 had said that all conveyances of laud “shall” be by deed, attested by two witnesses. The word conveyance, in the act of 1760, and the woüd mortgage, in section 1954 of the Code, and perhaps, also, the word deed, in section 2690, Code, are to be taken to mean “a perfect deed,” one proper to be recorded, and to be constructive notice to all the world when so recorded. The statute of frauds only requires contracts relating to land to be in writing, and our Code, (Irwin’s,) section 1940, makes the same provision. Taking this in connection -with the provision as to mortgages and deeds, it seems to us that the latter provisions only mean that a perfect deed — a perfect mortgage — one, the record of which conveys constructive notice, must be attested in a particular way, and be also recorded, etc. The Code is not to be construed as changing the old law, unless the change be very apparent, and it would be specially dangerous to take the definitions of the Code as absolutely accurate, and as excluding the common law definitions, unless it be plainly manifest that the intent was to make an exclusive and inclusive definition.

For these reasons we are constrained to reverse the judgment in this case. Moore, Trimble & Company took their mortgage with positive and detailed notice of the mortgage of the plaintiffs in error. Indeed, it is specially provided in the mortgage of Moore, Trimble & Company that the interest they take is tojie subservient to the mortgage of the plaintiffs, and much might be said against their right now to repudiate that priority of the plaintiff, even if his, the plaintiff’s, mortgage were not good as a technical mortgage.

Judgment reversed.