Hammack v. McDonald

• Decision Date: 20 May 1922
• Docket Number: 2954.
• Citation: 113 S.E. 83,153 Ga. 543
• Parties: HAMMACK v. MCDONALD.
• Court: Georgia Supreme Court

113 S.E. 83

153 Ga. 543

HAMMACK v. MCDONALD.

No. 2954.

Supreme Court of Georgia

May 20, 1922

Syllabus by the Court.

The provisions of the act approved August 17, 1918 (Georgia Laws 1918, p. 209), entitled "An act to provide for a prima facie presumption" in cases of registration of certain instruments, etc., is applicable to the case of a registrable instrument which appears by its caption only to have been executed in one county and the official attesting witness appears to be an officer of another county not having jurisdiction to witness deeds in the county named in the caption, though the instrument to which it is held that this statute is applicable was executed and recorded before the passage of this act.

This does not render the act retroactive in the sense in which that term is used in the constitutional inhibition against the passage of retroactive laws.

As this case is remanded for a new trial upon other grounds, the court does not pass upon the question as to the sufficiency of the evidence to require the submission of other issues to the jury than those actually submitted, inasmuch as upon the next trial the evidence may be different from what it was upon the last.

Additional Syllabus by Editorial Staff.

Laws 1918, p. 209, creating a presumption that official attesting witness attested registered instrument in county where he was authorized to act, is remedial, and should be liberally construed.

Error from Superior Court, Clay County; W. C. Worrill, Judge.

Action by George McDonald against H. E. Hammack and another. Judgment for plaintiff, and the defendant named brings error. Reversed.

An equitable petition was brought by George McDonald against his debtor, S.E. Fain; and H. E. Hammack, another creditor of Fain, was joined as one of the parties defendant. At the trial, the controlling issues narrowed down to a contest between the plaintiff and H. E. Hammack as to who held the superior lien on certain land belonging to their common debtor. On July 28, 1919, S.E. Fain executed and delivered to Mrs. D. L. McDonald, as executrix of the estate of J. J McDonald, a security deed covering this land, to secure the payment of his promissory note to her, of that date, for $5,000. This deed, which was duly attested and entitled to record, was recorded in Clay county, the residence of Fain on July 30, 1919. On July 16 of the following year the holder of this note and security deed duly assigned the same to the plaintiff, George McDonald. The lien asserted by H. E Hammack was evidenced by a mortgage on part of the same land, under date of September 20, 1917, to secure the payment of a note for $2,657.55, signed by S.E. Fain and G. D. Fain, both the note and the mortgage being payable to the "Hammack Rish Bank," a trade-name under which H. A. Hammack transacted business. The caption of this mortgage was: "Georgia, Calhoun County." It purported to have been executed by S.E. Fain before two attesting witnesses: W. T. Davis and J. M. Davis, "Notary Public, Clay County, Ga." Whether or not it was entitled to record, it was, in point of fact, recorded in the office of the clerk of the superior court of Clay county on October 29, 1917.

The plaintiff prevailed in the court below. The defendant, H. E. Hammack, made a motion for new trial, and upon its refusal sued out a writ of error, assigning error on the judgment overruling his motion for a new trial.

E. L. Smith and A. L. Miller, both of Edison, for plaintiff in error.

Glessner & Collins, of Blakely, for defendant in error.

BECK P.J.

(after stating the facts as above). Tested by the law as it existed prior to the passage of the act of August 17, 1918 (Georgia Laws 1918, p. 209), entitled "An act to provide for a prima facie presumption" in cases of registration of certain instruments, etc., the prima facie presumption would be that the mortgage given by Fain to the Hammack Rish Bank was executed in Calhoun county before two attesting witnesses, one of whom assumed to act as an official witness outside of his own county, that is, Clay county (Bryant v. Davis, 145 Ga. 531, 89 S.E. 512), and was not therefore, entitled to record in Calhoun county. And construing the law as it existed prior to the passage of the act above referred to, the authorities agree that if an instrument discloses on its face that it is not entitled to record, the actual record of it is ineffectual to charge the public with constructive notice. Sou. Iron & Equip. Co. v. Voyles, 138 Ga. 258, 261, 75 S.E. 248, 41 L.R.A. (N. S.) 375, Ann.Cas. 1913D, 369 and cases cited. But under the provisions of the act of August 17, 1918, a different presumption arises from that which arose from the facts stated above prior to the act; for it is expressly...