13 Ga. App. 1 | Ga. Ct. App. | 1913
Davis executed to the International Harvester Company a mortgage upon the property described as follows: “One bay horse, about nine years old, named Bill; one top buggy, made by Bull Buggy Company; also all my shop tools and fixtures . in my possession.” The mortgage was attested by one Carroll, a notary public. To the levy of a fi. fa. based on the foreclosure of the mortgage Davis interposed an affidavit of illegality, setting up that the description of the property in the mortgage was too indefinite, and especially the description of the shop tools and fixtures. It was further averred that the mortgage and the fi. fa. issued thereon were void because the mortgagee, without the consent or knowledge of the mortgagor, altered the mortgage by having Carroll, as notary public, attest the mortgage as a subscribing witness, with intent to injure and defraud the mortgagor. On the trial the
In some of the earlier decisions it was held that where a note not before witnessed was attested by a person not present at the signing, the attestation was a material alteration of the contract and destroyed its validity; but these decisions were put upon the ground that a note not witnessed was barred by the statute of limitations sooner than one thus attested, and that for this reason the paper as altered was a different contract from the one executed. See Smith v. Durham, 8 Pick. (Mass.) 246; Brackett v. Mountfort, 11 Maine, 115; Homer v. Wallis, 11 Mass. 308 (6 Am. D. 169). In later cases it was held that such an alteration would not void the contract unless it was fraudulently made, with a view of obtaining some improper advantage. Adams v. Frye, 3 Met.
In this State a mortgage is good inter partes without any witness, and the only purpose of having an official witness to such a paper is to admit it to record. Smith v. Camp, 84 Ga. 117 (10 S. E. 539); Benton v. Baxley, 90 Ga. 296 (15 S. E. 820). As between the parties, it is wholly immaterial whether the mortgage is admissible to record or not. In the present case, even if the mortgagee held the burden of showing that the so-called alteration was innocently made, and even if the evidence sufficiently shows
The court erred in overruling the motion for a new trial.
Judgment reversed.