Mason v. Parker , 1897 Ga. LEXIS 292 ( 1897 )

Atkinson, J.

The only question which we have deemed necessary to consider in the present case is as to whether, under the facts as they appear in the record, the promissory notes and mortgage offered and admitted in evidence by the presiding judge specified with such accuracy -the debt which the mortgage intended to secure as to constitute it a legal lien upon the property described to secure the payment of the sums represented in the promissory notes. It will be seen that the mortgage was in all respects regular. The only description, however, of the debt secured by it was by reference to a paper in the form of a promissory note which had been written immediately preceding the paper relied upon as giving the lien, but which was not itself signed independently of the signature of the maker as it appeared upon the mortgage proper. The other paper relied upon as the debt specified in the mortgage was a promissory note in due form signed by the alleged maker, and attached permanently by brass fastenings to the face of the mortgage. These notes were referred to in the mortgage as “the aforesaid promissory notes”; and the question is whether, under our statute, these papers taken altogether so identified the debt intended to be secured as to create a valid lien upon the property described in the mortgage. Section 2724 of our Civil Code dispenses with formalities in the execution of mortgages. Matters of form are no longer, under the Georgia law, considered of any consequence in determining whether or not a given instrument amounts to a mortgage; for the section of the code above referred to expressly provides, “No particular form is necessary to constitute a mortgage. It must clearly indicate the creation of a lien, specify the debt to secure which it is given, and the property upon which it is to take effect.” There is no question in the present case but that the papers under consideration indicated the creation of a lien, or that they properly described the property upon which that lien was intended to take effect. The only question is whether the con-stating instruments spoke with such precision the debt which was intended to be secured as to enable the court judicially to declare that a lien was in fact created to secure the payment of that debt. It will be noted that both of these instruments relied upon as evidences of the debt preceded the instrument relied upon as creating the lien, and we think were referred to as “the aforesaid promissory notes.” The use of the word “aforesaid,” the notes themselves having been previously mentioned, might have been slightly inaccurate. It would probably have been better to have referred to them as the notes “hereinbefore written and hereto attached”; but aided, as the circuit judge was, by the parol evidence which identified beyond question the notes offered in evidence as being the notes which were referred to as “the aforesaid promissory .notes,” we are fully pursuaded that he committed no error in admitting both the notes and mortgage in evidence. The unsigned note was in fact written upon the mortgage itself, and therefore the sighing of the mortgage was itself an execution of the note. Certainly as against this claimant the mortgage lien was good, because, whether the mortgage was properly recorded or not, or whether it was necessary to aid the execution of the mortgage by extrinsic evidence, the .claimant who undertakes to set up a title adverse to the lien of the mortgage parted with his money with full notice of the existence of the mortgage lien, and of the purpose of the mortgagor to insist upon his right. We think, therefore, that the court did not err in admitting in evidence the notes and mortgage, and, the verdict being otherwise in accordance with the law and the evidence, did not err in refusing to grant a new trial.

Judgment affirmed.

All the Justices concurring, except Little, J., dissenting.