88 Ga. 520 | Ga. | 1892
When two deeds or other instruments bearing the same date and executed by the same person would be consistent with each other if executed in one order of time, but inconsistent if executed in another order, the presumption is that they were in fact executed in that order which makes for their consistency. But in the case before us, the mortgage and the deed of absolute conveyance of the same date, both made by Burnett and covering the same premises, are inconsistent, no matter which was first executed. By the laws of Alabama, the mortgage as well as the deed would pass the title and legal seisin. The mortgage contains a warranty against incumbrances and against any adverse claim. The deed warrants that the vendor is lawfully seized of the premises in fee simple ; that they are free from all incumbrances ; that he has a good right to sell and convey; and that he, his heirs, etc., will defend the title forever against the lawful claims of all persons. Under such warranties as these we see not how any presumption can arise that the deed was executed after the mortgage. Each of the instruments absolutely ignores the other, and their coexistence is irreconcilable upon any theory which would screen the maker against the imputation of having done a wrongful act. Had he by the deed conveyed only an equity of redemption in the premises, this would have been consistent with the mortgage; but he conveys the absolute fee, and backs his conveyance with all the warranties usually relied upon by purchasers for assurance of clear and unincumbered title. Under these circumstances we see no reason for presuming that the rightful instrument was the mortgage and the wrongful one the deed, and we