In re Smith

281 F. 574, 1922 U.S. Dist. LEXIS 1504

• Court: District Court, N.D. Georgia
• Decided: June 7, 1922
• Docket: No. 7979
• Status: Published

Opinion

SIBLEY, District Judge.

Eight bales of cotton are claimed by Louisville Fertilizer Company against the trustee in bankruptcy, by virtue of a bill of sale thereon to secure a debt made in pursuance of Georgia Code, § 3306. The bill is attested under the ordinary attestation clause by a single unofficial witness, Gilleland, and on the same day before a notary public another person, Durden, makes an affidavit that he saw the maker sign, seal, and deliver the bill, that he himself signed the same as a witness, and saw Gilleland sign as a witness. The bill was thereupon recorded more than four months before the bankruptcy The referee held the bill invalid for want of proper attestation and registration as against the trustee’s lien.

[ 1 ] By Georgia Code, § 3307, although the bill was valid between tihe parties without record, it is “postponed to all liens created or obtained, or purchases made, prior to its actual record,” except those arising from contract under actual notice. By section 3308, in- order to admit the bill >to record, it must be “attested or proved in the manner now prescribed by law for mortgages.” By section 3257 it is ordained as to a mortgage that “it must be executed in the presence of, and attested by, or proved before, a notary public, or justice of any court in this state,” etc., “and recorded.”

[2] It is settled that actual registration or record, without the prescribed attestation, is equal to no record at all. Georgia Code, § 3262; Donaldson v. Thomason, 137 Ga. 849, 74 S. E. 762; Southern Iron Co. v. Voyles, 138 Ga. 258, 264, 75 S. E. 248, 41 L. R. A. (N. S.) 375, Ann. Cas. 1913D, 369. This paper was not executed before and attested by one of the prescribed officers. Was it “proved before” such an officer in the meaning of the statute? Dealing with a similar statute as to the registration of deeds, the Georgia court-said:

“Attestation is the act of witnessing the actual execution of a paper and subscribing one’s name as a witness to that fact. Acknowledgment is the act of the grantor in going before some competent officer and declaring the paper to be his deed.” White v. Megarahan, 87 Ga. 219, 13 S. E. 518.

It was ruled in Nichols v. Hampton, 46 Ga. 253, that a nonofficial subscribing witness might make affidavit of the execution and his attestation of the paper before the prescribed officer, and this would be the equivalent of the officer having attested it. It has never been held that one who may have been present at the execution of a paper, but who does not attest it at the time as a witness chosen by the parties to that end, could make this proof before the officer. The “proof” which may substitute the due attestation must either be an acknowledgment by the maker before the prescribed officer, or an affidavit by one of the attesting witnesses. Any other person is an ineffectual interloper. The would-be witness here did not sign as a witness, notwithstanding the form of the affidavit makes him say so, and his oath was not a sufficient probate of the paper to admit it to record.

The referee’s judgment is affirmed.