137 Ga. 848 | Ga. | 1912
The action was in trespass for cutting timber, by John E. Donalson against T. I. Thomason. The plaintiff claimed title to the land and timber, and the defendant claimed title only to the timber on the land. The plaintiff was nonsuited, and error is assigned on this judgment. It was admitted that F. E. and C. E. Graham owned the land, and that both parties deraigned their respective titles from them. On April 6, 1906, F. E. and C. E. Graham executed a mortgage on the land to the Decatur County Bank to secure a debt of $2,500; the mortgage was recorded the next day. The Decatur County Bank foreclosed its mortgage, 'and also obtained a common-law judgment; and the land was sold, by virtue of executions based on these judgments, for the sum of $2,100, to the Decatur County Bank, and a deed made to it by the sheriff on October 8, 1908. On February 8, 1909, the Decatur County
Allusion is made, in the oral testimony, to the record of the conveyance of the timber from the Grahams to Smith and Howell. The date of its record, and whether it was properly attested for record, is not made to appear. Hence the question is not presented as to whether, under our registry laws, a subsequent purchaser of land under a recorded deed, who. has made a partial payment, without notice actual or constructive of a prior mortgage, acquires title free of such mortgage.
Hnder the evidence the plaintiff was entitled to go to the jury. We have discussed the various aspects of the case as presented by the evidence, so that on the next trial the case may be more fully developed and tried under the principles of law herein expressed.
Judgment reversed.