Martin v. Williams

27 Ga. 406

• Court: Supreme Court of Georgia
• Decided: January 15, 1859
• Status: Published

Opinion

By the Court.

Lumpkin J.

delivering the opinion.

The question in this case is this : A. makes a deed to a tract of land to B., in April, 1834, which is recorded in 1840. In July, 1834, A. sells the same land to C., who records his deed in 1S36. Which vendee will hold the land ?

The Act of 1837 declares, that where the same person conveys the same land to different persons, if both deeds are recorded in time, or neither, that the oldest deed shall be preferred. But that Act applies, in terms, only to deeds thereafter to be made. Was the law different before 1837? We rather think not.

It is insisted, that under the Act of 1785, in deeds of bargain and sale, enrollment takes place of feoffment with livery of seizin. And that consequently, the youngest deed being first recorded, is entitled to priority. In other words, that registration consummates the conveyance.

But by examining that Act, it will be found that deeds of bargain and sale would only be good under that Act, provided they were recorded within twelve months. Here, two years elapsed between the execution and registration of the junior deed. This argument, therefore, cannot save it, admitting it to be sound.

The Act of 1837 is founded in justice, The oldest vendee, in this case, took his deed three months before the second - and more than two years before the second deed was recorded. What good, by way of notice, is this registration to effect? The second vendee having bought within the twelve months-allowed to the elder to record his deed, he is not prejudiced by ihe failure of the first purchaser to record in time. Had he bought after the expiration 'of the year,' without notice, instead of within three months from the date of the first sale, the equities would have been very different.

Judgment affirmed.

McDonald J. absent.