82 Ga. 80 | Ga. | 1888
A mortgage fi. fa. in favor of Louisa E. Jackson against N. L. Seales, for the sum of $1,500 principal, and interest and costs, and for attorney’s fees, was levied upon certain realty described in the fi. fa. A claim was interposed by MacKenzie, and an equitable plea filed, the facts alleged therein being fully set out in the official report of this case. On the trial of the case, the mortgage and fi. fa. were introduced in evidence by the plaintiff; and it appeared that the mortgage had been recorded by the clerk of the superior court of Burke county, where the trial was had. The claimant testified that at the time he bought the land, he had no knowledge of the existence of this mortgage. The' court rejected the claimant’s testimony to this effect, on the ground that the record was notice. Other testimony was offered and rejected, and other rulings made by the court to which exception was taken in the bill of exceptions, but which it is unnecessary to notice here, in the view we take of this case.
The mortgage given by Scales to Mrs. Jackson was
“State of Arkansas, Garland County:
“I, T. T. Beldin, circuit clerk and ex officio clerk of the county-court of Garland county, Arkansas, do certify that John W. Howell is a duly commissioned and qualified judge of the county court for said county, authorized to administer paths and take acknowledgments; that I am acquainted with the handwriting of said judge, and believe his signature to the foregoing to be genuine.
“In witness whereof I have hereunto set my hand and the seal of the county court of Garland county.
Tip. Beddin, clerk, by Edward Reid, D. C.”
It was insisted by counsel for the plaintifi in error that this probate of the mortgage was not in accordance with section 2706 of our code, which section is as follows : “To authorize the record of a deed to realty or personalty, it must be attested, if executed out of this State, by a commissioner of deeds for the State of Georgia, or a consul or vice-consul of the United States (the certificates of these officers, under their seals, being evidence of the fact,) or by a judge of a court of record in the State where executed, with a certificate of the clerk, under the seal of such court, of the genuineness of the signature of such judge,” etc.
This section of the code also requires (supra, §2706,) that the clerk of such court shall certify under the seal of the court “ the genuineness of the signature of such judge.” The clerk in this case simply certifies : “ I am acquainted with the handwriting of said judge, and believe his signature to the foregoing to be genuine.” "We do not think this complies with the law. The clerk, under our law, must certify positively that the signature is genuine. Nor is it an unreasonable requirement. If a judge of a court of record attests a paper, signing his name thereto, the clerk of that court ought to be able to certify positively as to the genuineness of the signature. He knows the judge, has seen him write, and can see him sign his name if necessary, and therefore can certify positively as to the genuineness of the signature. In addition to this, the probate is not signed by the clerk of the court, but appears to be signed by a deputy. It is signed “ Tip Beldin, clerk, by Edward Reid, D. C.” So it appears that Beldin was the clerk, and did not certify at all, although his name is to the probate-While it may bo true that a deputy-clerk may perform any duty that the clerk is authorized to perform, we are inclined to think that when the deputy-clerk certifies, he must certify over his own signature, and not that of the principal clerk as was done in this case. Eor these
It was insisted for the plaintiff in error, that counsel for the defendant in error ought not to be allowed to make objection to the probate of the mortgage here, because that point was not made before the court below and ruled on there. • "We cannot take judicial notice of the oral contentions of the parties in the court below. The only matters of which we can take cognizance here, in the proceedings in the court below, are such matters as are certified by the judge of the court below as having transpired therein. In this case, as the bill of exceptions alleges, the court below ruled that the recording o'f this mortgage was notice to the purchaser. The question, therefore, is plainly and distinctly made in this record, and it is our duty to take cognizauee of it and pass upon it. It may be true that the attention of the court below was not called to the defective probate of this mortgage, and it may be true that all the reasons and arguments presented here were not presented to the court below; but we hold that, whore a point is plainly and distinctly made in the record, it is our duty to pass upon it when it is insisted on before us.
Judgment reversed.