Lowe v. Allen

• Citation: 68 Ga. 225
• Parties: Lowe, administratrix. vs. Allen.
• Decision Date: 30 September 1881
• Court: Supreme Court of Georgia

68 Ga. 225

Lowe, administratrix. vs. Allen.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1881.

Deeds Judgments. Debtor and Creditor. Equity. Before Judge Mershon. Crawford County. At Chambers. October 12th, 1881.

Reported in the decision.

R. D. Smith, by N. J Hammond; L. D. Moore, for plaintiff in error.

M. D. Stroud; Duncan & Miller, for defendant.

Speer, Justice.

This was a bill filed by the defendant in error, for relief, injunction, etc., against the plaintiff in error and others, alleging, in substance, that one Harrison became indebted to complainant, and also was indebted to the intestate of plaintiff in error. To secure the debt due to complainant, Allen, he undertook to secure him by giving him a deed defeasible, under the 1969th section of the Code, to a lot of land he owned, and still owns, in Crawford county. By mistake the land was described in the deed as lot number ninety, when it should have been ninety nine. This deed was attested by a single witness, he being a justice of the peace. Mrs. Harrison, the wife, consented to the execution of the deed, as required by the statute. This deed was made and delivered after Harrison had contracted his debt with Lowe, the intestate, and was made in good faith co secure Allen, the complainant. After the execution of the deed, Lowe, the administratrix, sued her debt to judgment and levied on the land and advertised it for sale. Allen then filed this bill to enjoin the sale and reform his deed, by having the land described by the true number of the lot, in order that his rights as the holder of the deed might be protected. The chancellor on the hearing refused to dismiss the billon demurrer, and granted the injunction, requiring complainant to give a bond in the sum of five hundred dollars to save defendant harmless. To the order granting the injunction and overruling the demurrer, defendant below excepted and assigns the same as error.

The deed is a good deed between the parties to it, though attested by but one witness. See Code, §2690, as construed by 17 Ga., 295; 51 Ib., 268. The deedbeing made under section 1969 of the Code, as to third parties, no record is required, and even if not recorded it would only be postponed to younger deeds, not to judgments. Code, §§1969, 2705, 2706; 60 Ga., 588; 62 lb., 623-7. In the last case cited this court ruled: "The delay to record a deed has no relevancy, except upon the question of fraud. The consequence of not recording a deed within a year from its date is not to defeat the conveyance as against judgment creditors, but as against subsequent vendees from the maker of the deed, if they purchase without...