Welsh v. Lewis & Son

It appears from the record that the mortgage of defendant in error was foreclosed before either of plaintiffs in error had recovered a judgment against {he defendant whose property had been sold after it was attached, being perishable, under an order for that purpose passed by the ordinary, by virtue of authority vested in him by section 36P8 of the Code; that the attaching creditor, whose attachment caused the sale, is the defendant in error; that the goods sold for full value, and that, on a money rule to distribute the fund so brought into court by this sale of perishable property, the judge of the superior court, acting as judge and jury by consent, ordered the fund paid to the defendant in error, who was the mortgage creditor. To this judgment the other creditors except, and say that the court erred on several grounds.

1. First, because a relative of the mortgagee attested the mortgage as a witness, and was the only witness to it. We know of no law which makes it illegal that a brother-*391in-law of the mortgagee shall witness the mortgage, though he be a notary public, or that this fact makes the record of the mortgage on his attestation ex-offioio illegal. The case relied on in 46 Ga , 253, differs from this. There the attorney of the mortgagee administered the oath to the attesting witness, and the court held that, under section 443 of Irwin’s Code, 408 of the Code now, which prohibits attorneys, when notaries, from taking the affidavits required of their clients; an oath so taken to admit a mortgage to record was illegal. It rested on the special statute limiting attorneys’ power in respect to clients, and certainly the principle should not be extended beyond the case ruled, and facts just like it.

2. Secondly, error is assigned that the description of the property is not sufficient in the mortgage. The mortgage begins: “$510, Montezuma, Macon county, Ga.,” and then follows the promissory note, and then these words: “Now, in consideration of the above advance of said sum of money and to secure” etc., “I mortgage, sell and convey all of my entire stock merchandise now on hand and hereafter to be received, contained in my brick store, west side of Dooly street, between Hill & Shumate and Vinson & Jarnagin,” etc.

The whole paper evidently means, when construed together, “the goods in my brick store” in Montezuma, Macon county, Georgia, and on a certain street and between two other stores therein. All the merchandise in that store and to be in it; that is, to supply the place with new goods as the old are sold, is about as specific as it could well be made;’and much more so than some which have been upheld by this court. 46 Ga., 253; 55 Ib., 543; 58 Ib., 391, 178. Besides, it was recorded in Macon county, and it was proved that the only store defendant had was that on the street and the spot described in Montezuma.

3. The sale was not encumbered with the mortgage. It could not be. It was necessary to sell to secure it, to save it from perishing. To do that, it was necessary to *392sell the whole title, and all was sold without any incumbrance, and must have been, or the statute authorizing it is nonsense and inoperative for right wherever there is -a mortgage.

4. The mortgage was foreclosed before the money was distributed, and that brought it in time to claim it under the money rule. Even if it had not been foreclosed, as the whole property was sold, it would have been entitled. 21 Ga., 408; 22 Ib., 34, 69. The sale of perishable property will always defeat the lien of the mortgage, if unforeclosed, unless in such a case it attaches to the money, and whenever the property is so sold because perishable, the lien will attach, and the money will stand in place of that which would have perished but for its transformation into the durable form of money. So that, whatever may, have been the rule in other cases and under other circumstances, wherever perishable property is sold to preserve it, the liens of all parties on the property will attach to the- money. Besides, there was no judgment held by any body when the sale occurred. Is the mortgage to be placed in a worse condition to claim money than an open account or a note ? If the last named, turned into judgments after the sale, can claim, why not the mortgage ?

Judgment affirmed.