165 Ga. 558 | Ga. | 1927
Lead Opinion
The first sentence of section 1 of the act of September 30, 1885 (Acts 1884-5, p. 124), contains this language: “All deeds to realty and all bills of sale to personalty, where such deeds of bills of sale are given as sécurity for debt, shall be recorded within thirty days from their date.” Is this provision of said act still in force in cases where the competition is between contract liens and liens created by operation of law? We are of the opinion that this provision is not now of force. When the codifiers of the Code of 1895 codified this act, they left out the above language (§ 2772). The legislature, by the act of December 15, 1895 (Acts 1895, p. 98), adopted this Code with this act thus codified. Then the maker of the Code of 1910 adopted this codification of said act in totidem verbis (§ 3307). Thus the maker of the present Code again omitted from the codification of this act the above provision which required deeds to realty and bills of sale to personalty, made to secure debt, to be recorded within thirty days from the dates of such instruments. By an act of the legislature the present Code, containing the codification of said act, was adopted as the law of this State. Evidently the compilers of both of these Codes and the members of both of these legislatures were of the opinion that so much of the act of September 30, 1885, as required the record of these instruments within thirty days from the dates of their execution had been changed and repealed by the act of October 1, 1889 (Acts 1889, p. 106). Code of 1895, § 2778; Code of 1910, § 3320. So both the Codes of 1895 and 1910, with the act of 1885 so changed, were adopted by legislative acts, and were thus made the law of this State. Clearly the legislatures adopted, not parts of these Codes, but the entire Codes as compiled by the commissioners, and made them the law of this State. So under this general rule section 2772 of the Code of 1895, which codified the act of September 30, 1885, with the above omission, became the law of this State by the act of the legislature adopting
Undoubtedly the legislature had the power to adopt these Codes as whole acts. Central of Georgia Railway Co. v. State, 104 Ga. 831 (31 S. E. 531, 42 L. R. A. 518). It is true that the omissions of statutes or parts of statutes do not of necessity render the omitted statutes or parts of statutes no longer binding. The mere omission of a statute from the Code does not deprive it of the force and effect of law, if such statute has not been changed, modified, or repealed by subsequent legislation either in or out of the Code. Daniel v. Jackson, 53 Ga. 87; Kiser Co. v. Bonnett, 157 Ga. 555, 560 (122 S. E. 338). No hard and fast rule can be adopted for determining whether or not an act or a part of an act omitted from the Code has been repealed by the adoption of the Code fjom which it has been omitted. Wherever it appears that a part of an act has been intentionally left out of the Code, and the omitted part so palpably changes the 'law as to negative the idea of mere clerical omission, and where the codification of such act, with such omission, appears to have been intentionally adopted by the legislature, then the omitted part of the statute is no longer of force. City of Cochran v. Lanfair, 139 Ga. 249 (77 S. E. 95). Was the above language from the act of 1885 intentionally omitted from the Codes of 1895 and 1910 by the compilers; and were the codifications of this act by the legislatures, with this omission, intentionally adopted by the legislatures? In the Codes of 1863, 1868, and 1873, the words, “within three months from its date,” appeared after the word “recorded” in the section providing for the form and execution of mortgages. Code of 1863, § 1957; Code of 1868, § 1945; Code of 1873, § 1955. By the act of 1876 this time was cut down from three months to thirty days. Acts 1876, p. 34. This change appeared in the Code of 1882 as section 1955. But after the passage of the act of 1889 this time clause was eliminated in the Code of 1895, § 2724; and this elimination of this time clause appears in the Code of 1910, § 3257. Prior to the act of 1889, every deed was required_ to be recorded within one
But this question is not now an open one in this State. In Henderson v. Armstrong, 128 Co. 804, 807 (58 S. E. 624), this court, speaking through Chief Justice Fish, and in dealing with the question of the time in which deeds of bargain and sale should be recorded under the act of 1889, said: “The old law allowed one year in which to record a deed, during which time its priority over a subsequent recorded deed from the same vendor was preserved ; whereas, under the law as it has been since the act of 1889, no time is prescribed within which a deed may be recorded so as to preserve its priority, and the question of precedence between two deeds from the same vendor depends, when the deed last executed was taken without notice of the first, upon priority of record,” the due filing of a deed for record being equivalent to its record for the purpose of this priority. It necessarily follows, that, if the act of 1889 eliminated the times in which deeds of bargain and sale and mortgages were required to be recorded under previous laws, this act repealed the time clause in the act of 1885 by which deeds to realty and bills of sale to secure debt? should be recorded. So we have -the collective judgments of the codifiers of the Codes of 1895 and 1910, of the legislatures of 1895 and 1910, and of this court,, that the language of the act of 1885
To what extent, then, was the above-quoted portion of the act of September 30, 1885, modified, by'the registry act of October 1, 1889 (Acts 1889, p. 106; Civil Code '(1910), § 3320)? This portion of the act of 1885 has been repealed, as we have undertaken to show. So the holders of deeds to realty and bills of sale to secure debt have not, since the adoption of the act of 1889, thirty days in which to have such instruments recorded. But does this repeal of this language necessarily postpone a deed to realty to secure debt, which was recorded within thirty days from its date, to the lien of a junior general judgment which was obtained against the grantor in such deed within thirty days from the date of its execution, and upon which judgment execution was issued and recorded upon the proper execution docket within ten days from the date of the rendition of the judgment, and prior to the record of such deed? By section 3306 provision is made for the execution of deeds and bills of sale to secure debts. Section 3307 provides for the record of such instruments, and then declares: “Such deeds or bills of sale 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 or bill of sale. If, however, the younger lien is created by contract, and the party receiving it has notice of the prior unrecorded deed or bill of sale, or if the purchaser has the like notice, then the title conveyed by the older deed or bill of sale shall be held good against them.” Failure to record such a deed or bill of sale postpones it “to all liens created or obtained, or purchases made, prior to the actual record of the deed or bill of sale.” The language, “all liens,” is very broad, and embraces both liens created by contract and liens arising from operation of law. It will be noted that the language of section 3307, defining the liens to which unrecorded security deeds and bills of sale are postponed, is the same as that used to define the liens to which unrecorded mortgages will be postponed. The language as to mortgages is as follows: “Mortgages not recorded within the time required remain valid as against the mortgagor, but are postponed to all other liens created or ob-
By analogy and sound logic, the meaning given to the language, “liens created or obtained,” when used in section 3260 as to mortgages, should be given to the same language in section 3307 when used as to deeds and bills of sale to secure debt. This is especially true when we consider that “The objects of a mortgage and security deed and a bill of sale to personalty under the provisions of the Code are identical — ■■ security for a debt;” and when we remember that “this court has treated deeds to secure debts and bills of sale to secure debts as equitable mortgages.” Merchants &c. Bank v. Beard, 162 Ga. 446, 449 (134 S. E. 107). So we find that this court has given to this language the same meaning in dealing with the competition between unrecorded mortgages and liens, and unrecorded security deeds and liens. This court has held over and over again that “Under section 3307 of the Civil Code of 1910 a common-law judgment against a grantor, obtained after the execu
Applying the above rulings, our answer to question 1 (a) is that the competition created by the act of September 30, 1885, has not been modified by the act of 1889, except as to the time clause in the former act, which has been repealed by the act of 1889. To questions two and three our answer is that the lien of the judgment, is superior to the security deed.
The fourth division of the questions propounded by the Court of Appeals invokes the construction of section 6048 of the
“A valuable consideration is founded on money, or something convertible to money, or having a value in money, except marriage, which is a valuable consideration.” Civil Code (1910), § 4243. This is the meaning of the language, “a valuable consideration,” found in section 6048 of the Civil Code. Foster v. Rutherford, 20 Ga. 676; Molyneaux v. Collier, 30 Ga. 731, 741. But it is insisted by counsel for the bank that this is not the correct interpretation of the language, “for a valuable consideration,” as contained in the code section. Their contention is that any benefit to^the releasor or any injury to the releasee is a valuable consideration under said section. This contention is not well founded. It grows out of confusing a valid or sufficient consideration which will generally sustain a contract of release between the releasor and the releasee, and a valuable consideration for such release which will have the effect of satisfying the execution, to the extent of the value of the property so released, as to purchasers from or creditors of the plaintiff in execution. “A consideration is valid if any benefit accrues to him who makes the promise, or any injury to him who receives the promise.” Civil Code (1910), § 4242. Generally any benefit to the promisor or any injury to the promisee will be a sufficient consideration to sustain a contract. Generally a slight consideration is sufficient to sustain a contract, and courts of law will not look closely into its adequacy. Austell v. Rice, 5 Ga. 472. In Tompkins v. Philips, 12 Ga. 52, this court held that “Any benefit accruing to him who makes the promise, or any loss, trouble, or disadvantage undergone by, or charge imposed upon, him to whom it is made, is sufficient consideration, in the eye of the law, to sustain an assumpsit.” In that case Philips
Properly construed, there is nothing to the contrary of what we hold in Williams v. Brown, 57 Ga. 304. In that case this court was not dealing with the question whether a valid or sufficient consideration was a valuable consideration within the meaning of the code section with which we are^ dealing. The first headnote in that decision is as follows: “If a plaintiff in execution, for a valuable consideration, releases property which is subject thereto, it is a satisfaction of such execution to the extent of the value of the property so released, so far as purchasers and creditors are concerned.” That headnote laid down the correct principle applicable in that case, and we announce it as the true rule in this case. In other words, this court held that the consideration to uphold a release, under section 6048 of the present Code, must be a valuable consideration. It is true that this court in the opinion in that case set out the entire charge of the trial court. That charge embraced the following instruction: “You are to ascertain what property was released, if any, and its value; and if the release was made, whether for a valuable consideration, for this is
It is true that this court, in its opinion, stated that the question was whether» the assignees of the plaintiff in fi. fa. had released any of the defendant’s property for a valuable consideration, or had consented that funds arising from the sale of the defendant’s property be applied to younger fi. fas. against him. From this statement counsel for the bank draws the conclusion that this court in that case ruled that a valid consideration was sufficient to sustain a release under section 6048. This deduction, under the facts of that case, is not well drawn. In fact, it was not error in that case to define to the jury what constituted a valid consideration, so that they might not be confused. Furthermore, the question raised in the instant case as to what constitutes a valuable consideration was not made or considered in the case cited. No
The question numbered five embraces various subquestions. From lack of consistency, clearness, and completeness, we find it impossible to answer these various questions satisfactorily. For instance, the second question propounded does not state whether the funds brought into court by the creditor holding a security deed were brought in by virtue of a judgment obtained on the debt secured by such deed, or whether they were brought into court by such creditor under other process. We assume, however, that the secured creditor reduced his debt to judgment, and under said judgment had the property embraced in his security deed sold, and thus from this source brought into court the funds involved in this case. In the first question in 5 (a), these facts are stated: There is a fund in court. One of two creditors has a general execution which he could levy on other property of the common
In answering these questions we assume the major question to be this: B is the holder of a security deed to land, which he reduces to judgment, which is both a special lien upon such land and a general lien upon all the property of the defendant, and under his judgment sells this land, and thus brings a fund into court. A holds a senior general judgment against the maker of the security deed, which is a lien on the land embraced in the security deed and upon other incumbered property of the maker of such deed. In these circumstances can A be forced to pursue such other incumbered property of the maker of the security deed, before resorting to the fund resulting from the sale of the property by the holder of the security deed under the judgment upon his debt thereby secured ? If A has a right to go upon two funds, and B upon one, both having the same debtor, and the funds are property of the same person, A shall take payment from that fund to which he can resort exclusively, so that both may be paid. Ex parte Kendal, 17 Vesey, 520; Newsom v. McLendon, 6 Ga. 392, 400; Civil Code (1910), § 3220. Under the facts and the principle just stated, a judgment creditor who waits until another creditor, who has a
We assume that the judgment of the third party referred to in question 6 was superior to the judgment obtained by the holder of the security deed upon the debt thereby secured. Upon this assumption, and under the principle above announced, the holder of the judgment, which was superior both to that under which the property of the common debtor was levied on and sold, and to the
We answer the first question propounded by the Court of Appeals in the negative. The answer to question 1 (a) is set out in the second division. The answers to questions 2 and 3 sufficiently appear from that division. The answer to question 4 sufficiently appears from the third division. In view of the rulings in the fourth division, we answer the first question in question 5, as follows: This time begins when the. creditors undertake to prosecute their rights by legal process. We answer the second question in question 5 in the negative. We answer the questions in 5 (a) in the negative, assuming in answering the second that the language, “the other creditor has no lien,” means such creditor has no contractual lien on such other property, but has a judgment lien thereon by reason of having reduced his secured debt to judgment. We answer 5 (b) in the negative. In view of the rulings made in the fifth division, we answer question 6 in the affirmative, and 6 (a) in the negative.
Dissenting Opinion
dissenting. I feel constrained to dissent from the ruling in the fifth headnote. I do not think that the refusal of a creditor holding the superior judgment lien to claim a fund from a third person holding a lien superior to that of' another judgment creditor can be construed to be included within the terms of section 3220 of the Code merely because he declined this request. “As among themselves, creditors must so prosecute their own rights as not unnecessarily to jeopard the rights of others,”
Rehearing
ON MOTION FOR REHEARING.
A motion for rehearing is made upon the ground that we overlooked the decision in Williams v. Brown, 57 Ga. 304, and certain statutes. We have redrafted the third portion of.our opinion dealing with the questions raised in the motion for rehearing. This redraft in no way changes our original opinion; and accordingly the motion for a rehearing is denied.
