Hardaway v. Semmes

24 Ga. 305

• Court: Supreme Court of Georgia
• Decided: January 15, 1858
• Status: Published

Opinion

Benning, J.

By the Court. delivering the opinion.

The only law subjecting a mortgagee to any risk, for not recording his mortgage in three months, is that contained in the fourth section of the Act of 1837, entitled, “an Act to provide for the recording oil deeds of. mortgage,” &c. That section is in the following word’s: “ Upon failure to record any mortgage as hereinbefore required, within the time or times hereinbefore specified for recording the same, that then and in such case, alljudgments obtained beforefhe foreclosure of the said mortgage, and also any mortgage executed after the same, and duly recorded, shall take lien on the said mortgaged property, in preference to the said mortgage.” Pr. Big. 166.

This law does not subject a mortgagee to any loss in such a case as the present. The garnishing creditor in the present case, did not obtain his judgment, (if at all,) “before the foreclosure” of the mortgage; he was not the holder of a mortgage “executed after” this mortgage. His case is not within the law.

Indeed, it does not appear, that he gave credit in consequence of the non-registration of the mortgages. It does not appear that he ever searched the records. His debt may have been older than the oldest of the three mortgages.

Nothing in the common law required, or even encouraged, a mortgagee to record his mortgage.

We see nothing erroneous in the decisions excepted to.

There does not seem to have been any thing in the evidence, to authorize the last request.

Judgment affirmed.