55 Ga. App. 495 | Ga. Ct. App. | 1937
This is a money rule arising out of a contest between two mortgagees of the same property to a fund in the hands of the sheriff, derived from the sale of the property on the foreclosure of the mortgages. From the evidence it appears undisputed that P. P. Staples, one of the claimants, held a mortgage for $118.80 on certain personal property, which was executed by Ollie Smith on May 9, 1935, and recorded on May 15, 1935, that it was foreclosed on October 12, 1935, that J. L. Heaton, the other claimant, held a mortgage for $275 on the same property, which was executed by Ollie Smith on February 11, 1935, and filed for record and recorded October 15, 1935, and that this mortgage
Two questions are presented for consideration. First, does it appear as a'matter of law that by virtue of the written transfer on the back of Staples’ bill of sale transferring the .note to the City Supply Company on August 22, 1935, Staples had no right, title, or interest in the note and the lien on the property as security for the note, and therefore as a matter of law had no right, title, or interest in the funds in the hands of the sheriff? Second, does it appear as a matter of law and without dispute that Staples, when he acquired the lien on the property by virtue of his mortgage which was executed May 9, 1935, had knowledge either actual or constructive of Heaton’s existing mortgage which was executed February 11, 1935? The mortgage to Heaton was not filed for record until October 15, 1935, which was after both the execution and the record of the mortgage to Staples. Therefore it is conclusive as a matter of law that Staples had no constructive notice by virtue of any record of the Heaton mortgage. Code, § 67-2501. As to actual knowledge by Staples of the existence of Heaton’s lien at the time of the execution of the mortgage
Insistence is made, by counsel for Heaton, that the assignments of error in the special grounds of the motion for new trial which related solely to the alleged error in the direction of a verdict can not be considered, because the grounds of the amendment to the motion were not approved by the judge. The order on the amendment was as follows: “The above and foregoing amended motion is hereby allowed, and is ordered that the same be filed." This order contains no approval of the grounds. The objection on the ground that the grounds of the amendment to the motion were not approved by the judge is made for the first time in the brief of counsel in this court. It does not appear that any exception was taken in the trial court on the ground that the grounds of the amended motion had not been approved. On the same day
Judgment reversed.