166 Ga. 412 | Ga. | 1928
Lead Opinion
The Mortgage Guarantee Company of America et al. filed a petition against the Atlanta Commercial Bank et al., alleging that on November 14, 1925, title to described property, the subject-matter of the suit, was in L. D. Jones, subject to a prior deed to secure a debt from H. L. Hutchinson to the Realty Sales Corporation, transferred to Liebman Incorporated, on which date Jones conveyed the same by deed to secure debt to the Realty Sales
Evidence was introduced by both sides, tending to substantiate the respective claims. Included therein was the following transfer introduced by defendants: “ Georgia, Fulton County. The within loan deed and property covered thereby is hereby transferred, quit-claimed, and assigned unto Atlanta Commercial Bank, the undersigned conveying and demising all its right, title, and interest in and to the deed and the property covered thereby by these presents unto Atlanta Commercial Bank. In witness whereof the undersigned has attached its hand and seal this 2nd day of December, 1925. Eealty Sales Corporation, by S. P. Gronheim, Vice-Pres., by W. J. Hogan Jr., Sec. & Treas.,” with corporate seal affixed. The plaintiffs introduced a transcript of the minutes of a meeting of the board of directors of the Eealty Corporation, in which appears the following entry: “The Yice-President announced that
The court passed an order denying the relief for which plaintiffs prayed, and they excepted.
While valid against persons executing them, security deeds are postponed to all liens created or obtained and recorded prior to the actual record of the deed, unless the younger lien is created by contract and the party receiving it has notice of the prior unrecorded deed. Civil Code (1910), § 3307. A transfer of title held under the security deed, made to assign all interest in the debt secured and in the land as security therefor, stands on the same basis as to execution and recordation as the deed itself. Citizens & Southern Bank v. Farr, 164 Ga. 880 (139 S. E. 658); Acts 1921, pp. 157, 158; Code (Park) § 4215 (1), (Michie) § 4213 (1).
The averment in the answer that the mortgage company had notice of the Atlanta Commercial bank’s lien, we construe, in connection with the entire answer and the evidence in the ease, as a mere conclusion, except in so far as it may refer to constructive notice by recordation. We have already indicated that the records did not furnish notice of the transfer to the mortgage company. It appears from the evidence without dispute, except as the excerpt from the answer quoted may be a conflict, that the Mortgage Company did all it could and all the law required it to do to ascertain the facts. Its officers and attorneys examined the public records where liens were required to be recorded and found no evidence of
The Mortgage Company insists that under the facts of the case it is entitled to be subrogated to the lien held by Liebman Incorporated, paid off with the proceeds of the loan made by the Mortgage Company to the Eealty Corporation. The evidence shows unequivocally and without conflict that the Liebman lien, which, until paid, was the first lien on the property involved, was paid off by the proceeds of this loan. Furthermore, it is shown without dispute by the minutes of the Eealty Corporation that the loan was sought and procured for the purpose of discharging the Liebman lien. It is shown by the affidavit of the vice-president of the Eealty Corporation. Nevertheless we are of the opinion that no subrogation will be implied. The subject of subrogation has been elaborately and learnedly discussed in Wilkins v. Gibson, 113 Ga. 31,
The court erred in refusing an injunction.
Judgment reversed.
Dissenting Opinion
We dissent from the conclusion drawn in the last sentence of the first headnote. The expression employed in the warranty deed from Jones to the Bealty Sales Corporation, that the grantee, said Bealty Sales Corporation, “assumes payment” of the notes secured by the prior security deed from Jones to said Bealty Sales Corporation, was discovered by the attorney for the Mortgage Company while investigating the title for the purpose of making the loan. The term “assumes payment” does not imply that the debt has been paid. It implies that the debt is outstanding. Having notice of this statement in the warranty deed, if the attorney had inquired of the said Bealty Sales Corporation what was meant by the expression, or had demanded to see the note, the inquiry would have led to discovery of the fact that the note was outstanding in the hands of the bank, which was a bona fide purchaser of the paper before maturity. In the circumstances the Mortgage Company was charged with notice of the transfer to the bank, and the latter was entitled to priority over the Mortgage Company. The blanket affidavit furnished by the Bealty Sales Corporation to the Mortgage Company was not sufficient to excuse the inquiries above mentioned,
The defendant in error filed a motion for a rehearing, and among other grounds thereof is the following: “The court in its decision made the statement that the transfer of the loan deed under which movant claims was not witnessed as provided by law. Movant stated that the transfer of this loan deed was properly witnessed and this fact was proved before the trial court by producing such transfer so witnessed.” By reference to the bill of exceptions, we find the transfer quoted in full without any attestation at all or the names of any witnesses, but preceding the quotation the bill of exceptions contains the words: “The defendant introduced in evidence the following properly witnessed [italics ours] transfer which was written on a separate sheet of paper and attached by gem clips to the above deed.” It is only fair to the defendant in error to say that the writer overlooked the words, “properly witnessed,” but these words amount to a conclusion, and are not sufficient to show this court that the transfer was attested or proved in the manner prescribed by law for mortgages. Moreover, the matter now called to our attention was given no weight in deciding the case. It was so stated. Nor are the other grounds of the motion sufficient to warrant the grant of a rehearing. Rehearing denied.