46 Ga. 253 | Ga. | 1872
It must be admitted that these papers fail to fill the common law idea of a mortgage. They are not under seal; they contain no words of conveyance, and are painfully meagre in their description, not only of the debt intended to be secured, but of the property in which the lien is intended to be created. But our Code requires no specified form to constitute a mortgage. It conveys no title, and it is not required to be under seal. It is sufficient if it specifies the property, state the debt and show that the parties intend to create a lien: Revised Code, section 1945. Taking these papers together, they show pretty plainly that the debt intended tobe secured is $350, as the papers specify; that a bay mare was (so far as this issue is concerned) the property, and that the parties intended to create alien for that amount upon the bay mare. True, the description will apply to any bay mare, but there is another description added, to-wit: the bay mare sold by the plaintiff to Johnson. Description of property depends a good deal upon its nature, and perhaps this description of the mare is sufficient to put any one who should read the paper upon notice. It is contended that no paper can be a mortgage under our Code until it is properly probated, and, perhaps, recorded. The language of the Revised Code, section 1945, gives much color to this idea. The words are, “it musí be executed in presence of or proven, before a Notary Public, etc., and be recorded within three months.”' But other sections of the same chapter imply very clearly that it was not intended to change the old law. Section 1947 provides that any mortgage, not recorded in time, shall take lien from the date of the record. Section 1949 provides that a mortgage not recorded in time, or Irregularly recorded, shall not be a lien against purchasers without actual notice. From this it seems clear that if the mortgage be recorded in time, it takes lien from its date. And this was the old law: Cobb’s Digest. The Act of 1866, Code, 1509, provides that a Notary need not affix his seal to his attestation of a deed.
We are clear that, under the decision of this Court in the case of Willowshi vs. Hall, 37 Georgia, 678, this affidavit of probate, if taken, as was contended, before the plaintiff’s attorney, was not a legal probate. The Court, in that case, decides that section 443, Irwin’s Revised Code, prohibits an attorney, who is a Notary, from administering any oath required by law of his client, and Judge Walker, in his opinion, after an elaborate examination of the authorities, shows that, by the practice of the English Courts, both of law and chancery, affidavits taken before the attorney of the party producing them are improperly taken. We think the rule founded on a sound public policy. The subsequent Act of March 8th, 1869, does not alter the law; it only cures defects in cases which had at that time occurred, and by this very Act, the Legislature would seem to intend that the practice was not only illegal in the past, but that it was intended it should remain illegal.
Under the proof, the claimant would seem to be an innocent purchaser. The mortgagee has no natural equity in her favor. She must stand on her strict legal rights. To get her lien good against the right of the claimant, who brought before record and without notice, she must bring herself within the precise letter of the law. This she has failed to do, if the proof shows her mortgage was not properly proven, and, therefore, not properly recorded in three months. The Court should have so charged the jury, and if the proof satisfied them that the probate was before the plaintiff’s attorney, the claimant should have had the verdict.
Judgment reversed.