60 Ga. 588 | Ga. | 1878
Treating the deed and bond as together constituting a mortgage, and as falling within the law of recording mortgages, they should have been put upon record within three months, from their date. Code, §1955. A failure would leave them subject to postponement in favor of junior liens and conveyances (not affected with actual notice), coming into existence at any time prior to the actual recording. Ib., §1957. The result in this case would be that the judgment lien would be superior to that of the mortgage, for the judgment was rendered before the deed was recorded, and the bond, so far as appears, has not been recorded even yet. But the deed and the bond do not together constitute a mortgage. It tabes more facts than they exhibit — the balance of the facts resting in parol. From the face of the deed, it might well be inferred that the claimant actually purchased the land and paid for it. A deed in the usual form recites an actual sale and the actual payment of a consideration, and this deed may be presumed to have been in the usual form. From the face of the bond, supposing it to have been in the usual form also, the conclusion would be, that the obligor had agreed to sell his land, not Barksdale’s, to the obligee, at a given price, to be paid in the future, and that upon payment of the same, the sale would be complete, and titles would then be made. From neither of the instruments, nor from both together, could the great fact be ascertained that the deed was made to secure the payment of the note described in the bond. This, of all others, is the very fact on which the element of mortgage rests, and it lies dehors the writings; it is in
Judgment reversed.