Richards & Brother v. Myers & Marcus

63 Ga. 762

• Court: Supreme Court of Georgia
• Decided: September 15, 1879
• Status: Published

Opinion

Bleckley, Justice.

By the Code, §1955, the time limited for recording a , mortgage so as to afford complete protection to the lien from and after its creation, is three months from the date ■of the instrument. Other sections declare the consequences of failure to record thus early ; section 1960 says “ the due record of a mortgage, though not made in the time prescribed, is notice from the time of record to all the world ;” and section 1957 postpones a mortgage of this class to “ all «other liens created or obtained” prior to the actual record, unless the younger lien is created by contract, and is taken with notice of the mortgage. In the present case the younger lien competing for the money with the mortgages is a judgment lien ; and a judgment lien is not created by contract, but arises by operation of law. 59 Ga., 466. That the mortgages were foreclosed and the fi.fa. as to one of them levied prior to the rendition of the judgment, makes no difference in the relations of the liens to one another. The lien of a mortgage is in the contract, not in the judgment of foreclosure, and th q fi.fa. and levy do not aid the lien, but are the means of enforcing it. 7 Ga., 498, 499, 500, (text of the opinion). It is not suggested that foreclosure took place within three months after the dates of the mortgages ; and did that fact appear, we do not know that it would have been any substitute for actual recording. There is no indication in the statute that such would be its effect.

Judgment affirmed.