Missouri State Life Insurance v. Barnes Construction Co. , 147 Ga. 677 ( 1918 )

Beck, P. J.

(After stating the foregoing facts..)

1. The paper executed between Lawton, Jordan & Company and Barnes Construction Company created a lien upon the realty described, and was properly held by the court to be a mortgage.

2. The court did not err in admitting in evidence the instrument which the Construction Company insisted comprised, among other things, a mortgage giving it a lien upon the premises in which it had constructed the sprinkler system. The mortgage was signed in the following manner:

“In presence of Lawton, Jordan & Company [Corporate

“C. G. Adams. By E. F. Lawton, President. Seal].

“ J. E. Adams. Attested and countersigned,

By W. T. Lawton, Secretary & Treas.”

And the instrument ivas similarly executed by Barnes Construction Company, by H. L. Barnes as Secretary and General Manager. Below this, executed on the same date and presumptively at the same time, appear certain “acknowledgments.” One is signed by E. F. Lawton and attested by C. G. Adams and J. E. Adams. Immediately following this, on the same date and writing, is another acknowledgment by E. F. Lawton, attested as follows: “C. G. Adams, Notary Public, Bibb County, Georgia. (Seal.)” And following this is still another sworn statement by W. T. Lawton, attested as follows: “C. G. Adams, Notary Public, Bibb County, Georgia. (Seal.)”

In the case of Truluch v. Peeples, 1 Ga. 3, the sufficiency of the following attestation of a deed to land was in question:

“Signed, sealed, and delivered his

in presence of James x Mathews [Seal].

“Wright Sanders. Thomas Sanders.” mark

“Acknowledged in the presence of me. Wiley Pearce, J. P,”

This instrument was held to be admissible in evidence without further proof; and it was further held, that the court would presume that the acknowledgment before the magistrate was made where it purported to have been made, and at the time it purported to bear date, in the absence of proof to the contrary; and that it is to be presumed, till the contrary is proved, that every man obeys the mandates of the law, and performs all the official duties imposed upon him by law. In the case of Dinhins v. Moore, 11 Ga. 62, it was said: “A deed witnessed thus: ‘In the presence of Theodore Guerry, Thos. Bivins, J. P./ is sufficiently attested to admit it to record; and the conclusion of law, from this general form of attestation, is that the subscribing witnesses saw the grantor sign, seal, and deliver the deed, for the purposes therein mentioned.” See also Stanley v. Suggs, 23 Ga. 131. The official signature of C. G. Adams to the certificate made in connection with the execution of the instrument under consideration, apparently made at the same time, affords presumption that he was acting officially on the occasion of the execution of the paper. And considering the signature of the witness in the attestation clause to the mortgage and the certificate following, we are of the opinion that there was attestation by C. G. Adams in his official capacity.

3. But in regard to the priority of the liens of the different parties to this case, we are of the opinion that the claim of the Insurance Company ranks first. When Adams executed a deed to Law-ton, Jordan & Company, thereby putting title in that company, so that it might by deed pass title to the Insurance Company, which thereupon made a loan with which Lawton, Jordan & Company might pay off the balance of the purchase-money due to Adams, all of these transactions being contemporaneous and constituting a single transaction, the lender took the place of Adams relatively to the priority of its claim under its security deed, and is entitled to have its claim paid in full before Adams, and, to the amount of purchase-money, before the claim of Barnes Construction Company. Achey v. Coleman, 92 Ga. 745 (19 S. E. 110); Protestant Episcopal Church v. Lowe, 131 Ga. 666 (63 S. E. 136, 121 Am. St. E. 243). But the last-named claim stands second in the order of priority, and should be satisfied ahead of the claim of Adams, who permitted a part of the money loaned by the Insurance Company to Lawton, Jordan & Company to remain in the hands of that company, taking from it a security deed; and when he did so, this constituted a new transaction as between him and Lawton, Jordan & Company, and the lien of Barnes Construction Company attached to the premises as against Adams. We think the court erred in failing to allow the Insurance Company a priority for the full amount of money which it let Lawton, Jordan & Company have to pay off the balance of the purchase-money; and no deduction will be made therefrom of the amount which Adams allowed to remain in the hands of the latter company. It follows from what we have said that the findings of the court must be reversed and the decree be set aside, so that the priority of liens can be adjusted in accordance with what we have ruled.

Judgment reversed.

All the Justices concur.