6 S.E.2d 162 | Ga. Ct. App. | 1939
Lead Opinion
Where a retention-title contract was signed by L. J. Ennis so as to appear to be signed as R. J. Ennis, it was the duty of the owner of the paper to inform the clerk of the superior court, with whom an effort was made to "file" the paper for record, as to the correct name of the maker; and mere delivery of the paper to the clerk for the purpose of filing and recording was not such a proper filing as would afford protection against a lien subsequently acquired by law, where it was actually filed and recorded under the wrong name.
1. This case presents a novel and interesting question. The retention-title contract was signed by L. J. Ennis. In signing the contract Mr. Ennis signed his first initial "L" so that it looked more like an "R" than it did an "L." The clerk recorded the paper as if it had been signed by "R. J. Ennis" instead of recording it as if it had been signed by "L. J. Ennis." Since the passage of the act of 1889, p. 106, Code, § 67-2501, the owner and holder of a deed, mortgage, or conditional-sale contract (Code, § 67-1403), and other liens required by law to be recorded in the office of the clerk of the superior court, has been protected by the filing of his paper with the clerk of the court, whose duty it was to record the filing on a public docket required for that purpose. Improper record, or no record at all, has no effect on the efficacy of the filing. Willie v.Hines-Yelton Lumber Co.,
The judge of the superior court erred in sustaining the certiorari.
Judgment reversed. Stephens, P. J., and Sutton, J., concur.
Concurrence Opinion
The Code declares: "The registration and record of conditional bills of sale shall be governed in all respects by the laws relating to the registration of mortgages on personal property, except that they must be recorded within 30 days from their date." § 67-1403. "A mortgage recorded in an improper office, or without due attestation or probate, or so defectively recorded as not to give notice to a prudent inquirer, shall not be held notice to subsequent bona fide purchasers or holders of younger liens. A mere formal mistake in the record shall not vitiate it." § 67-111. "Deeds, mortgages, and liens of all kinds, which are required by law to be recorded in the office of the clerk of the superior court, shall, as against the interests of third parties acting in good faith and without notice, who may have acquired a transfer or lien binding the same property, take effect only from the time they are filed for record in the clerk's office. The said clerk shall keep a docket for such filing, showing the day and hour thereof, which docket shall be open for examination and inspection as other records of his office." § 67-2501. The filing or *479 recording of the retention-title contract in the name of "R. J. Ennis" when it was signed by L. J. Ennis was such a defective filing or record as would not amount to notice to bona fide purchasers or holders of younger liens. Under the facts of this case, the lien of the distress warrant, though younger than the retention-title contract, took priority over the latter. Therefore the judge of the superior court erred in sustaining the certiorari.