Touchstone v. Ford

92 S.E. 524, 146 Ga. 797, 1917 Ga. LEXIS 502

• Court: Supreme Court of Georgia
• Decided: May 16, 1917
• Status: Published

Opinion

Beck, J.

(After stating the foregoing facts.) Under the facts appearing in the record, the judgment giving priority to the mortgage of G. G. Ford was demanded, and the award in his favor was proper. While it was competent to reform the mortgage in favor of Bennett, transferred to Touchstone, and while that reformation dated back to the date of the instrument reformed, the failure to record the junior mortgage as reformed at a time prior' to the record of the older mortgage gave the latter priority. The record of the Bennett-Touchstone mortgage in its defective condition, did not have the effect of 'making it a lien on the property which the parties intended that the mortgage should cover. “If the description of the property in a mortgage wholly fails to identify that intended to be encumbered, or by mistake is so expressed as to be applicable only to a different tract or lot, so that it could not be enforced without invoking the aid of a court of equity to reform it, the record of it is not notice to subsequent purchasers or lienors.” 27 Cyc. 1209. In the case of Phillips v. Boquemore, 96' Ga. 719 (23 S. E. 855), the reformed mortgage was brought in competition with a judgment lien, and not with a contract lien. But in this ease the holder of the reformed mortgage is combating a contract lien which was recorded at a date anterior to the filing of the suit for the reformation of the mortgage containing a misdescription of the property, or, rather, containing a description which was not applicable to the property intended to be encumbered.

Judgment affirmed on the main hill of exceptions; cross-hill of exceptions dismissed.

All the Justices concur.