Gardner v. Moore

• Court: Georgia Supreme Court
• Writing for the Court: McCay
• Citation: Gardner v. Moore, 51 Ga. 268 (Ga. 1874)
• Decision Date: 31 January 1874
• Parties: Gardner, Dexter & Company, plaintiff in error. v. Moore, Trimble & Company, defendants in error.

51 Ga. 268

Gardner, Dexter & Company, plaintiff in error. v. Moore, Trimble & Company, defendants in error.

Supreme Court of the State of Georgia

(Atlanta, January Term, 1874.)

Mortgage. Before Judge James Johnson Talbot Superior Court. September Term, 1873.

This case arose upon a rule against the sheriff of Talbot county, at the instance of Moore, Trimble & Company, requiring him to show cause why he did not pay over to a mortgage execution in their favor, certain funds then in his hands, realized from the sale of the mortgaged property. Amongst other causes, the sheriff set up the fact that he had in his hands an execution based on a mortgage of older date on the same property, in favor of Gardner, Dexter & Company. It was replied that the mortgage of Gardner, Dexter & Company being on real estate was void, having but one witness.

Both mortgages were executed by William Ragland. That to Moore, Trimble & Company recited that the lands therein described were conveyed "with the following reservation and exception, that is to say, saving and excepting the interest previously conveyed by said Ragland to Jane E. Shaw and Gardner. Dexter & Company, by reason of two deeds of mortgage given said Jane E. Shaw to said lots to secure a note for $500 00, and to said Gardner, Dexter & Company, to secure a note to them of $526 92."

Jane E. Shaw seems to have taken no part in the contest. The court held the mortgage of Gardner, Dexter & Company to be invalid on account of its having but one witness, and excluded it from participation in the fund according to its priority. To which Gardner, Dexter & Company excepted.

Marion Bethune; M. H. Blandford; Willis & Willis, for plaintiffs in error.

*E. H. Worrill; J. M. Matthews, for defendants.

McCay, Judge.

Section 1954 of the Code does say, "It (a mortgage of real estate) must be attested by two witnesses, and it must be recorded, " etc. But sections 1957 and 1959, part of the same chapter and the work of the same hand, contemplates that a mortgage not duly recorded, "or without due attestation, " may be good except as against bona fide purchasers without notice or subsequent liens not created by contract. And this was undoubtedly the law before the Code. In 17 Georgia, 295, this court held that a deed with but one witness was not void, notwithstanding the acts of 1760 and 1785 had said that all conveyances of land "shall" be by deed, attested by two witnesses. The word conveyance, in the act of 1760, and the word...