In re Hammett

• Decision Date: 17 February 1923
• Docket Number: 1429.
• Citation: 286 F. 392
• Parties: In re HAMMETT.
• Court: U.S. District Court — Northern District of Georgia

286 F. 392

In re HAMMETT.

No. 1429.

United States District Court, N.D. Georgia.

February 17, 1923

Moon &amp Parham, of LaGrange, Ga., for Trustee.

Lee B Wyatt and Walter B. Branan, both of LaGrange, Ga., for claimant.

SIBLEY District Judge.

The trustee in bankruptcy seeking to sell land was met by a deed made by the bankrupt to another and recorded more than four months before the bankruptcy. The deed was attacked before the referee as being insufficiently attested for record, who heard, over objection, parol evidence sustaining the deed and denied the application for sale. It was stipulated in argument here that the sole question for decision was the validity of the deed as against the trustee's lien.

The deed purporting to be made on February 14, 1921, is in the language of an ordinary warranty deed, save that it recites that it is made to secure a described note. It has the usual attestation clause, 'signed, sealed and delivered in the presence of us,' followed by the names of two unofficial witnesses. Under these are the words:

'Sworn to and subscribed before me at Corinth, Georgia, this 16th day of February, 1921. Moreland Miller, Notary Public, State at Large.'

The parol evidence was in substance that the deed was drafted on February 14 and executed on February 16, 1921, in the presence both of the unofficial witnesses and the notary, who all attested it at the same time.

1. Because of the recital that it was made to secure a debt, the deed is of a class peculiar to the Georgia statute law known as a security deed (Park's Code, 3306). It passes title, but is otherwise much assimilated to a mortgage. Its attestation and record are controlled, not by statutes relating to deeds of bargain and sale (Park's Code, 4198, 4202, 4203), but by special provisions requiring that it be 'attested or proved in the manner now prescribed for mortgages' (Park's Code, 3308), and fixing the consequences of failure to record (Park's Code, 3307), as exactly the same as in the case of a mortgage (Park's Code, 3260), to wit: It is 'postponed to all other liens created or obtained, or purchases made prior to the actual record,' but 'if the younger lien is created by contract' and the party receiving it has notice of the unrecorded paper, the latter is to be held good against him. Thus, while the failure to record a deed of bargain and sale, under the law applicable to it, does not subject the land conveyed to a lien against the grantor subsequently arising by operation of law and not by contract (Donovan v. Simmons, 96 Ga. 340, 22 S.E. 966), in the case of an unrecorded security deed or mortgage, the reverse is true, even though the holder of the noncontract lien has actual notice of the unrecorded instrument (Cambridge Tile Co. v. Scaife, 137 Ga. 281, 73 S.E. 492; Coley v. Altamaha Fertilizer Co., 147 Ga. 150, 93 S.E. 90; Cook v. Adams Bros. Co., 148 Ga. 289, 96 S.E. 499; Cabot v. Armstrong, 100 Ga. 438, 28 S.E. 123; Cottrell v. Merchants' Bank, 89 Ga. 508, 517, 15 S.E. 944; New England Co. v. Ober, 84 Ga. 294, 10 S.E. 625; and Andrews v. Mathews, 59 Ga. 467). Since the trustee here has a lien arising by law dating from the filing of the bankruptcy petition, and since a record on insufficient attestation or probate is equal to no record at all (Code, 3262; Donalson v. Thomason, 137 Ga. 848, 74 S.E. 762; Southern Iron Equipment Co. v. Voyles, 138 Ga. 258, 75 S.E. 248, 41 L.R.A. (N.S.) 375, Ann. Cas. 1913D, 369), the validity of this deed depends on the sufficiency of its attestation or probate under the mortgage requirements of Park's Code, Sec. 3257:

'It must be executed in the presence of, and attested by, or proved before, a notary public or justice of any court in this state, or a clerk of the superior court (and in case of real property by one other witness), and recorded.' 2. Parol evidence of the facts attending the execution of the paper cannot be considered to aid it. The validity of the record must be established by the face of the record and of the recorded instrument. The statute requires not only execution in the officer's presence, but also attestation by him or else a subsequent probate before him, and this must appear to the recording officer by official certificate and not otherwise. The clerk is authorized to record only on the attestation or probate required by the statute and thus appearing. His record cannot be sustained by any other proof of due execution. 'All 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. ' Southern Iron Co. v. Voyles, 138 Ga. at page 261, 75 S.E. at page 249 (41 L.R.A. (N.S.) 375, Ann. Cas. 1913D, 369). An apparently regular record, on the other hand, may under some circumstances be invalidated by parol proof of forgery or fraud in the attestation (Granniss v. Irvin, 39 Ga. 22; Hansen v. Owens, 132 Ga. 649(6), 64 S.E. 800; White v. Magarahan, 87 Ga. 217, 13 S.E. 509; Baxley v. Baxley, 117 Ga. 60, 43 S.E. 436), or the disqualification...