White v. Magarahan

• Decision Date: 08 May 1891
• Citation: 13 S.E. 509,87 Ga. 217
• Parties: White et al. v. Magarahan et al.
• Court: Georgia Supreme Court

13 S.E. 509

87 Ga. 217

White et al. v. Magarahan et al.

Supreme Court of Georgia

May 8, 1891

Syllabus by the Court.

1.A voluntary deed from a husband to his wife dated November 19 1887, and witnessed by two unofficial persons, was handed by the maker to the clerk for record, February 9, 1888.The latter refused to record it for want of legal attestation.Whereupon the maker acknowledged it was his deed, and the clerk signed his name officially under the usual attestation clause, "signed, sealed, and delivered in presence of us," and recorded it.Held, that this record was not notice of the execution of the deed at the time it bears date to a creditor of the maker, who extended credit on the faith of the property covered by the deed after its execution, and before record.

2.When a course of dealings begins between parties, and credit is extended by one to the other on the faith of particular property, the legal presumption is that this property is relied on for all credit given while the dealings continued until there is some notice or agreement to the contrary, such dealings covering a period of only a few months.

3.The verdict being inevitably right in any view of the case as presented, it was error to grant a new trial.

Error from superior court, Richmond county; H. C. Roney, Judge.

Lumpkin J.

The firm of Durst, Shea & Co., of which Magarahan was a member obtained credit from White & Co. upon the faith of a statement made for the purpose of obtaining the credit to the Bradstreet Mercantile Agency, dated October 4, 1887, and signed by the firm and Magarahan individually, in which it was represented that the latter owned real estate to the value of $16,000.White & Co. sold various bills of goods to Durst, Shea & Co., the last credit being given in January, 1888.November 19, 1887, Magarahan, by a voluntary deed, conveyed to his wife for life the land referred to in said statement, with remainder to his children by her in life at the time of her death, and, if none, the property to revert to himself.The deed was witnessed by two unofficial persons.February 9, 1888, Magarahan carried it to the clerk of the superior court, and requested him to record it.The latter refused to do so, remarking, in substance, that it must have an officer as a witness, whereupon Magarahan acknowledged that it was his deed, and the clerk signed his name officially as a witness under the usual attestation clause, and then took the deed and recorded it.According to the testimony of Magarahan, all the indebtedness of his firm to White & Co. up to the date of the deed was actually paid.Assuming this to be true, the debt for the payment of which White & Co. now seek to subject the land was for goods sold and delivered after the execution of the deed, and before its record.White & Co. had no notice of the existence of this deed until after it was recorded.By making the deed, Magarahan left himself practically insolvent.

1.The counsel for Mrs. Magarahan, who claimed the property levied on for the benefit of herself and children, insisted that the deed of Magarahan was legally recorded, and was therefore constructive notice to White & Co. of its existence from the time it bore date, because it was actually recorded in accordance with the provisions of section 1778 of the Code within three months after the execution thereof.In our opinion, the deed was not legally recorded.Section 2706 of the Code provides that, in order to authorize the record of a deed executed in this state, it must be attested by one of certain intentioned...