Courson v. Walker

Simmons, Justice. 1. This case is controlled by the decision in Rasin v. Swann, Stewart & Co., 79 Ga. 703, where it was held that .a mortgage to secure purchase money, the mortgage being executed simultaneously with the purchase, has priority over the lien of an existing judgment against the purchaser and mortgagor. Counsel for the plaintiff in error sought to take this case out of the ruling in that case, on the ground that in that case none of the purchase money was paid, while in the present case part ■of the purchase money was paid at the time of the sale. Lie contends that inasmuch as part of the purchase money was paid, the mortgagor got a complete title to the mule, and by reason of his having this title, the property became subject to judgments against him older than the mortgage. We think the reasoning of the court in the decision above referred to applies as well where a part of the purchase money is paid as where none of it is paid. In that case the court said: “ The ■presumption is that Swann, Stewart & Co. would not have sold Dukes the mule unless he had given this mortgage, to secure the purchase money. . . . For aught that appears in the recojd, Swann, Stewart & Co. ■credited him exclusively upon the faith of the property. They sold him the mule on the condition that it was to stand as a security for the purchase money.” So far as the failure to record the mortgage is concerned, we do not think such failure affects the lien of tbe mortgage relatively to a prior judgment; certainly not where a fail [178] ure to do so does not continue as much, as thirty days after its execution. 2. There is no’ law requiring the execution which issues upon the foreclosure of a mortgage on personalty to be entered on the general execution docket in order to preserve the lien of the mortgage. The recording act of 1889 does not apply to such executions. Judgment affirmed.