Smith v. Worley, 3359

3359 | Ga. Ct. App. | Jan 15, 1912

Powell, J.

(After stating the facts.)

1. Unless the deed by which G. A. Worley conveyed his interest in his father’s estate to his brother was void, or for some reason ineffectual, as against the rights of the attaching creditor, the judgment of the trial court is correct, irrespective of any equitable rights that may have existed owing to the fact that the interest of the defendant in attachment may have been greater than the amount represented in the consideration of the deed by which he conveyed his interest to his brother. This is settled in principle by the case of Howard v. Porter, 99 Ga. 649 (27 S.E. 725" court="Ga." date_filed="1896-11-16" href="https://app.midpage.ai/document/howard-v-porter-5567263?utm_source=webapp" opinion_id="5567263">27 S. E. 725), where it is held that, in this class of cases, garnishment unaided by any equitable pleadings is ineffectual to reach the surplus coming to the defendant in attachment after his transferee, though holding for security only, has been satisfied.

2. The deed as first executed was .not properly attested or acknowledged ; its first record was ineffectual. The plaintiff contends, therefore, that it was void, and that it took no precedence over his rights as an attaching creditor. Our registry law as contained in the Civil Code (1910), § 3320, does not apply to contests between deeds and liens, other than liens obtained by contract. A valid deed, though unrecorded, is superior to a subsequent judgment or attachment against the same property. Donovan v. Simmons, 96 Ga. 340 (22 S.E. 966" court="Ga." date_filed="1895-06-10" href="https://app.midpage.ai/document/donovan-v-simmons-5566258?utm_source=webapp" opinion_id="5566258">22 S. E. 966). The proposition is too well settled in this State to require an enlargement of discussion, or a citation of authorities to the effect that a deed is not invalid for lack of registry or recordation.

3. Tlie filing and recording of a deed upon proper attestation or acknowledgment gives it two advantages over an unrecorded deed. Tlie one is to prevent its postponement to the rights of third persons acquiring subsequent conveyances or contract liens binding against the same property; and the other is to authorize its introduction in evidence without further proof of its execution. We have just shown that there was no need for record, so far as this plaintiff was concerned, as affecting the question of priority; but the further point is made here that the court erred in admitting this deed in evidence, since it was not properly recorded until after the suit was pending. It will be recalled, from the statement of facts prefacing this opinion, that it having been discovered that the prior attestation and record were ineffectual, the grantee caused the deed to be properly acknowledged, and to be rerecorded shortly prior to the time of the trial. It was upon this reacknowledgment and rereeordation that the judge admitted it in evidence without further proof of its execution. The point is made that a case is to be tried according to the rights of the parties at the commencement of the suit. This is generally true, so far as relates to substantive rights of the parties, but has no reference to mere matters of evidence. The competency of evidence and the methods of making proof are determinable as of the time of the trial, and not as of the time of filing the suit. For instance, a deed less than thirty years old at the date of the filing of the suit, which becomes as much as thirty years old during the pendency of the suit and prior to the trial, may be introduced in evidence at the trial as an ancient deed, and without proof of its execution. We find no error. Judgment affirmed.