156 Ga. 661 | Ga. | 1923
On April 24, 1920, Jones conveyed by his deed to Hamilton a certain tract of land to secure a debt of $200, with 8 per cent', interest from date. This deed recited that it was intended to operate as provided in sections 2771 et seq. of the Code of 1895, which provisions are now found in sections 3306 et seq. of the Civil Code of 1910. This security deed was recorded on Oct. 9, 1920. On June 29, 1920, Jones sold the same tract of land to Eandall for the sum of $450, and executed and delivered to the latter his warranty deed to these premises. This deed was recorded on Oct. 8, 1921. The grantor was in possession of the premises when he made this deed of bargain and sale to Eandall, who immediately took possession, which he has ever since kept. Eandall was an innocent purchaser from Jones for value, without knowledge or notice of Hamilton’s security deed. This security deed contained a power of sale, which Hamilton was proceeding to exercise. Thereupon Eandall filed his petition to enjoin such sale and to cancel the security deed, on the ground that Hamilton’s conduct in keeping his security deed off of the record until after petitioner had purchased said premises from Jone^was a fraud on him. J ones was insolvent when he made his deed to Eandall, and is still insolvent. Hamilton was not sworn as a witness in his own behalf, and gave no explanation of his failure to record his security deed. His deed was the only evidence he introduced. There was no evidence, other than his mere failure to record his security deed, that Hamilton acted in bad faith. At the conclusion of the evidence the court directed a verdict in favor of Hamilton, and to this ruling Eandall excepted.
The only question for decision by this court is whether the security deed of Hamilton is superior to Bandall’s junior deed of bargain and sale, the latter having been executed subsequently to the security deed but prior to its record, but not recorded until after the security deed had been recorded, the common grantor being in possession at the time he executed his warranty deed to Eandall, who immediately took and has ever since kept possession of the premises. It will thus be seen that the competition is between a senior security deed and a subsequent deed of bargain and sale, accompanied with possession, the former not being recorded until after the execution of the latter, which itself was not recorded
While the language, “ every deed conveying lands,” in this section, standing alone, is broad enough to embrace security deeds, we do not think it applicable to security deeds. These deeds are the creatures of statute. Civil Code (1910), § 3306. “Every such deed shall be recorded in the county where the land conveyed lies. . . Such deeds . . not recorded remain valid against the persons executing them, but are postponed to all liens created or obtained, or purchases made, prior to the actual record of the deed. . . If, however, the younger lien is created by contract, and the party receiving it has notice of the prior unrecorded deed, . . or if the purchaser has the like notice, then the title conveyed by the older deed . . shall be held good against them.” Sere unrecorded security deeds are postponed to purchases made, and not to subsequent recorded deeds. In the instant case the contest is between an unrecorded senior security - deed and a purchase made, the latter being evidenced by a warranty deed and ac
Judgment reversed.