Harvill v. Lowe , 47 Ga. 214 ( 1872 )

Montgomery, Judge.

The mortgage from Smith to Lowe in this case was nothing more than a mortgage of whatever interest Smith had at the date of the mortgage. Possibly, if Smith had acquired complete title to the land between the date of the mortgage and its foreclosure, he would have been estopped to deny Lowe’s right of foreclosure upon the entire estate which he held. His mortgage certainly does not estop Harvill. Does the deed? Suppose Harvill had filed his deed after the mortgage had been foreclosed, and the land levied on under the mortgage execution ? Manifestly the execution of Harvill must have taken precedence of the mortgage fi. fa. under section 3604 of the Code. True, the sale of the land, under the levy made before the deed was filed, is not in accordance with the statute, and, therefore, invalid; but that leaves the case precisely where it would have been had Harvill filed his deed, and before he could levy the mortgage creditor had anticipated him and levied his execution. To state the facts, as it seems to me, is to decide the case. Had the mortgage been made after the deed was recorded, and before Harvill had levied, the case might have been different, though even then it is difficult to see why the judgment lien of Harvill would not have attached eo instanti that the deed was recorded to the exclusion of “any other judgment or encumbrance against the defendant.”

The act of registering a deed does not amount to such a delivery of it as will transfer the title from the grantor to the grantee. Its being placed on record by the direction of the grantor is, at most, but prima facie evidence of its delivery, which may be explained and rebutted : Wellborn vs. Weaver et al., 17 Georgia, 275.

Judgment reversed.