Walton v. Shakespear

88 S.E. 906, 18 Ga. App. 140, 1916 Ga. App. LEXIS 177

Opinion

Broyles, J.

1. Where personalty is sold on credit, and contemporaneously therewith the purchaser gives to the seller a mortgage on the property to secure the indebtedness so created, the lien of the purchase-money mortgage is superior to all common-law judgments rendered against the mortgagor prior to the purchase and the giving of the purchase-money mortgage. Wiggins v. Tumlin, 96 Ga. 753 (23 S. E. 75); Luke v. Cason, 7 Ga. App. 183 (66 S. E. 493). Under the facts as disclosed by the record, the execution of the mortgage to secure the purchase-money was, to all practical intents and purposes, “contemporaneous” with the sale of the personalty.

2. The controlling question in the case being one of law, and no question of fact being involved, and the finding of the jury in the justice’s court being contrary to the rule of law stated above, the judge of the superior court did not err in sustaining the certiorari and in rendering final judgment awarding the fund to the plaintiff in certiorari. Civil Code, § 5201. Judgment affirmed.