Patterson v. Esterling

27 Ga. 205 | Ga. | 1859

By the Court.

Lumpkin, J.

delivering the opinion.

Bennett Esteriing mortgaged to Wm. J. Patterson lot of land No. 214, in the 28th district of Sumter county. The mortgage was duly recorded. The land was subsequently-sold under a common law/i./er., and knocked down to Newman McBain. Patterson was present at the sale. All admit that he gave notice of his mortgage lien. Glover, the Sheriff, testifies that proclamation was made about the time the land was knocked off He thought the hammer came down before the proclamation was made, but was not certain about it. James W. Ragan swears positively that the notice was given before the land was knocked off, And McBain himself being-sworn, says, that notice was given by Patterson before the land was bid off; and that he desired to withdraw his bid, and the Sheriff would not permit him to do so. He further admits, that he had heard of the mortgage before the day of sale, but thought that it was settled.

Suppose Patterson, being present, had kept silent, his mortgage having been duly recorded, would he have lost his lien? Surely not. But upon the fact of actual notice, the weight of the proof is entirely with Patterson. There can be no doubit but that he is entitled to enforce his lien on the land.

Judgment reversed.

McDonald J. absent.