Douglass v. Mccrackin

• Decision Date: 31 July 1874
• Citation: 52 Ga. 596
• Parties: Eugenius L. Douglass, plaintiff in error. v. James McCrackin,defendant in error.
• Court: Georgia Supreme Court

52 Ga. 596

Eugenius L. Douglass, plaintiff in error. v. James McCrackin, defendant in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1874.)

(Trippe, Judge, was providentially prevented from presiding in this case.) Mortgage. Registry. Notice. Before Judge Kiddoo. Terrell Superior Court. November Term, 1873.*For the facts of this case, see the decision.

Vason & Davis; F. M. Harper; E. L. Douglass, by John T. Clarke and Z. D. Harrison, for plaintiff in error.

Hoyle & Simmons; H. & I. L. Fielder, for defendant.

WARNER, Chief Justice.

This was a claim case, and on the trial thereof in the court below, the jury found the property levied on not subject to the plaintiff's fi. fa. The plaintiff made a motion for a new trial on the several grounds, as set forth therein, which was overruled by the court, and the plaintiff excepted. It appears from the evidence in the record, that Oliver, on the 10th day of November, 1863, executed his mortgage deed to. the plaintiff to secure the payment of three promissory notes, on certain land described therein, which mortgage was not recorded. On the 24th day of November, 1864, Oliver conveyed the mortgaged premises to James J. Wall. On the 5th day of February, 1870, James J. Wall and William E. Wall conveyed the land to McCracken. At the May term of Terrell superior court, 1866, the plaintiff obtained a rule nisi against Oliver to foreclose his mortgage. At the November term of said court, 1871, the plaintiff obtained a rule absolute foreclosing his mortgage. On the 8th of June, 1872, an execution issued on the judgment of foreclosure, and was levied by the sheriff on lot of land number two hundred and thirty-four, in the eleventh district of Terrell county, which lot was embraced in the mortgage, and was claimed by McCracken as, his property.

1. The main question raised on the argument of the case here, was whether the fact that the claimant, having purchased the land pending the proceeding to foreclose the mortgage, the pendency of that proceeding was notice to him of the mortgage, within the true intent and meaning of the statute. The 1957th section of the Code declares that mortgages not recorded within the time required, remain valid as *against the mortgagor, but are postponed to all other liens created, or obtained, or purchases made, prior to the actual record of the mortgage. If, however, the younger lien is created by contract, and the party receiving it has notice of the prior unrecorded mortgage, or a purchaser has the like notice, then the lien of the older mortgage shall be held good against them. Was the proceeding to foreclose the mortgage such a lis pendens as would charge McCracken, the purchaser, with notice of the existence of the mortgage? We recognize the general rule to be found in the authorities, that the purchaser of property, pending a suit in respect to the title to that property, would be charged with notice of the title involved in that suit, whatever the same may be, and would be bound...