Goodrich v. Williams ( 1873 )

McCay, Judge.

1. Whilst we think it not of much importance, (in view of the fact that even under our law the mortgage debt was good for more than the Judge gave it,) yet we are clear that this was a South Carolina contract — that is, the debt was. It was entered into in Carolina, it was by its terms made payable at Charleston, South Carolina. Nor does the fact that it was secured by a mortgage on goods in Georgia change the rule: Story on Con. Laws, 290, 293; 10th Wheaton, 367. It was said in argument that the going to Charleston and making the contract there, and specially providing in the note thatit was to be paid in Charleston, was a fraud upon the laws of Georgia — a device to escape the effect of our law then in force against usury; but we see nothing in this. When Mr. Williams was applied to for the loan of money, he'had a right to stipulate that the contract should be made according to the laws of South Carolina, the place of his residence, the place where he was doing business. He had a right to say the contract shall be made in South Carolina, and should be performed there. Had he, in reply to a letter of the borrower asking the loan, said, in terms, I live in South Carolina, I will lend you the money but you must come here for it, the note shall be made here and performed here, and its validity be determined by the laws of South Carolina, he would have only been doing what he had a right to do.

2. We will not extend the prohibition of section 408 of the Code of 1873, beyond its term, especially in reference to a mere ministerial act, such as an affidavit to forclose. The Notary here does not appear to have been a clerk — a servant of the attorney. The relation which in fact existed between him and Mr. Carr does not bring him within the reason of the rule, even if it were to be extended to a servant. We agree also with the presiding Judge that as the mortgage was duly recorded, the question was not very material whether it was foreclosed or not. The money was in Court by consent, for distribution, and the mortgage was entitled to it by reason of its date and record, and by reason of its being a lien on the goods.

3. We have decided in Chisholm vs. Chittenden & Company, 45 Georgia, 213, that a mortgage may, under our Code of 1873, section 1954, cover a stock of goods as it changes by purchases and sales, but that it can only cover an amount equal to what was on hand at the time. We adhere to that ruling. The permission to give such a mortgage, though a very convenient privilege, is one very easily used to commit fraud, and we think the spirit of the Code as well as public policy requires it to be limited as we have limited it. We have know of several cases where mortgages of this character have been given, with a small stock at the time, and large purchases made on credit soon afterwards. The temptation to do this, if possible, would lead to fraud, and we think the object of the law is best attained by keeping the parties within the amount of stock on hand at the time. But the goods when purchased, if there be no fraud, and be delivered, belong to the purchaser and fall within the lien, though they be not paid for. The seller has no lien on them or title to them, and by the express words of the Code they fall into the lien of the mortgage. As a matter of course, if the goods brought into the stock were stolen goods, or goods with some other lien on them, or other good title in them of a third person, the mortgage could not cover them.

4. Altogether, we see no error in the judgment. The mortgage was entitled to be paid in proportion to the amount of goods it was a lien upon. It furnished that much to make the fund, and we think the division made was right. The goods sold were of the value of $14,622 00. The mortgage was a lien upon $7,019 00, of that stock, and it was entitled to such a proportion of the fund in hand as $7,019 00 bears to the stock seized and sold, to-wit: $3,664 00, or about that sum.

Judgment affirmed.