Russell v. C. D. Carr & Co. , 38 Ga. 459 ( 1868 )

McCay, J.

The true date of every paper is the time of its delivery, and this may, even as between the parties themselves, be shown, although a different date be upon the paper. 4 Philips Ev., Cowen and Hill’s notes, part 2d, 588, and cases cited. Much more is this true, when the real facts of a transaction are sought to be proven by one who is not a party to the paper, but who resists it. The rule that a writing cannot be altered or explained by a parol, only applies against the parties to it, or privies. A stranger, to whom it has become important to show the truth of a transaction between others, is not bound by what they may have agreed upon as to its truth. He has never agreed to the writing. 1 Greenleaf’s Ev., sec. 277; 2 Starke’s Ev., 575. So too he is not bound by the judgment of foreclosure. He was no party to it and was not heard. 1 Kelly, 412, 6 Ga. R., 178.

The real point in this case is, whether the fact that Russell’s deed was delivered a couple of hours sooner than Carr’s, though on the same day, gives it priority. The general rule is, that the law makes no fractions of a day. 15 Ves., 257; 9 East., 154; 4 T. R., 660. It has even been held that the service of a copy writ, before the original was filed in office, if it was filed on the day of the service, was good.

It is true that this rule, being in fact a fiction, will not be adhered to when it would work injustice. 3 Burr, 1434; Gr. E., 154.

We do not think this is such a case. These parties were both creditors of the mortgagor. Morally, they had equal claims upon him. Evidently it was not his intent to give the preference to either. It was only by a sort of accident that Russell’s was first signed. The mortgagor was, in fact, waiting for Carr’s to be prepared when he was called out by Russell. "We see, therefore, no injustice in putting them on an equality.

The man who gets a secret lien upon the property of another, who still retains the possession, has no natural right or equity against third persons. Some positive law must give him preference, or equity, which is equality, will put others who, without notice, though subsequently, also get a lien, on an equal footing with him.

The rights of mortgagees, as against each other, are regulated by statute. The common law only gave rights when the possession passed or there was notice. The registry laws and other positive legislation provide for preferences and priorities between liens when there is no transfer of possession.

Clearly, under our registry laws, either of these mortgagees would, for purposes of registry and fixing his lien, have a right to consider his mortgage as executed in the first minute or last minute of the day of its date. He had three months from its date in which to record it, and he might delay till the last minute of the last day.

We think, moreover, that section 1956 of the Code controls this case. That section provides that if there be several mortgages of equal date, or embraced in the same mortgage, and one forecloses, the Court will control the proceeds of the sale to distribute to the several mortgagees according to their claims. Code, sec. 1956.

Here are clearly two cases put, one of several mortgages in the same instrument, and therefore simultaneous, the other of several mortgages of equal date which cannot possibly be simultaneous in fact, as one must necessarily be executed before the other; yet it is provided that if one forecloses, the Court will control the proceeds of the sale to distribute to the several mortgagees according to their claims. It is hardly conceivable that such language should have been used if it had been the intent to allow mortgages executed on the same day, to have priority as to each other, if proven to be older in point of fact.

Nor does section 1982, providing that when liens are declared to be of the same dignity, then the oldest shall have' preference, affect the question.

That section does not apply to mortgages; the priorities between them are regulated by notice and by the registry laws, and though of equal dignity, it often occurs that the oldest does not have the preference.

That section 1982 evidently applies to the liens provided for in the article in the Code in which it is found. Some of those liens are declared by the Code to be of the highest dignity, and as to others nothing is said of their dignity. The liens alluded to are all liens growing out of the peculiar relations of the parties to each other and to the property, as attorneys and clients, steamboat owners and hands, mechanics and their workmen, landlords and tenants, factors who furnish material to make the crop, etc. In all such cases there is an actual equity in favor of the first, as he either has possession, or it may easily be found out that he has put his labor or material on the thing. Mortgages stand on a different footing; they are secret liens, and they have no natural, equitable preference over each other without notice, and their priority is therefore regulated by law.

We think section 1956 of the Code puts all of equal date on the same footing, unless there is some other equity to control the distribution of the proceeds.

Judgment affirmed.

Brown, C. J., concurring, wrote out no opinion.