96 Ga. 719 | Ga. | 1895
In all cases of mistake a court of equity will, upon proper proof, reform a contract so as to make it speak the truth, and put the parties, as to each other, in the true position in which they thought they had placed themselves when they made the contract. This relief will not be confiued to the original parties alone, but will be extended both to and against their privies in estate and in law. The only exception to this rule is the case of a bona fide purchaser without notice. Code, §3119. Judge McCay, in the ease of Burke v. Anderson, 40 Ga. 539, gives the reason for this exception. He says: “A bona fide purchaser is protected because his purchase is upon the faith of the apparent rights of the seller. He has acted, paid out his money, upon the apparent facts of the case, as the parties have allowed them to exist. It is their fault if the papers do not speak the truth, and it is unjust that their mistake should be cured to his injury who has been misled by their failure to attend carefully to their own business.” Is a judgment creditor who extended credit on the faith of the apparent ownership of the property a bona fide purchaser without notice? We say that he is not. He is only a privy in law of the debtor. After explaining why a bona fide purchaser is protected, Judge McCay, in the same opinion, says: “A judgment creditor does not stand in this position. His lien does not exist by contract. He did not advance his money to get his lien. That is an incident attached by law to his judgment. By the contract he acquired no lien. It cannot, therefore, be said that the right he now sets up is the right of a purchaser of property acquired in good faith, in ignorance of this mistake, for a consideration which he would not have advanced had the mistake never occurred. It may, it is true, be said that perhaps he would not have given the credit had the true state of the case
It was argued by counsel for the plaintiffs in error, that the mortgage should be postponed to their judgments, because the record of the mortgage did not include this particular property; and the case of Andrews v. Mathews, 59 Ga. 466, is relied on as sustaining this contention. That, however, was the case of a mortgage illegally recorded for want of probate, and the decision was based upon section 1957 of the code, which deals solely with unrecorded or defectively recorded mortgages. J udge McCat, in discussing the same section in Burke v. Anderson, supra, says: “The law makes it the duty of a mortgagee to record his mortgage, and if he fails, it puts the penalty upon him that, as to such liens as are cast upon the property by operation of law, he shall be postponed. If the mortgagee has failed to record, it is a piece of gross negligence which he ought to suffer for. If the record is defective, if the clerk is at fault, the mortgagee has his remedy against him. At any rate it is the positive provision of the statute that a failure to record or a defective record is not good against a judgment. Notice has nothing to do with it, since the judgment was not taken because there was no notice. It is simply a regulation of law providing for the priority of one lien over another, under certain prescribed and definite circumstances. But it extends only to the case mentioned in the statute, to wit, the case of an unrecorded or defectively recorded mortgage. It
This, under the rule expressio unius exclusio alterius forbids the idea that judgment creditors or any others than bona fide purchasers for value are excepted. See Zimmer v. Dansby, 56 Ga. 82.
The evidence in this case fully warranted the verdict and authorized a decree reforming the mortgage.
Judgment affirmed.