14 Ga. App. 81 | Ga. Ct. App. | 1913
Certain real estate of J. D. Page was levied on and sold under an execution in favor of the British & American Mortgage Company Limited against J. D. Page, and the residue of the proceeds of the sale in the hands of the sheriff, after satisfaction of this execution, was claimed by various creditors of Page under executions against him, and the sheriff was ruled by the court to appear and show cause why this money should not be paid to them. At this point H. H. Merrick filed his intervention, alleging that he was the holder of a mortgage from J. D. Page, covering the property sold, and that the lien of this mortgage and of a judgment obtained thereon was superior to the liens of the executions of the other claimants. It appeared, from the evidence, that this mortgage was duly filed for record in the office of the clerk of the superior court of the county where the land was situated, but that it was recorded in a deed book instead of in a mortgage book (there being-separate books for the recording of deeds and mortgages), and it was contended by the other claimants that such record was not notice to third parties of the existence of the mortgage, but was void, and that therefore the intervenor’s claim should be denied. The court held that the recording of this mortgage in a deed book was no notice of the existence of the mortgage, and ordered that the fund be paid over to the various creditors according to the date of their liens; and to this ruling the holder of the mortgage cepted. ex-
When the case comes on for trial again, the trial judge can determine the respective priorities of the liens in the light of what has hereinbefore been said. Our ruling as to the effect of the filing of the mortgage as notice requires a reversal of the judgment.
Judgment reversed.