Opinion
39334.
DECIDED MARCH 12, 1962.
Claim, etc. Augusta Municipal Court. Before Judge Cooper.
Louis Saul, B. H. Barton, for plaintiff in error.
R. H. Jones, contra.
1. The effect of failure to record a bill of sale to secure debt is the same as the failure to record a deed of bargain and sale. Code § 67-1305.
2. Where a bill of sale to secure debt, executed outside the State, is not recorded in Georgia within the time provided by Code § 67-108, the purported conveyance of title is invalid in Georgia as to parties other than the grantor and grantee. Lewis v. Jackson, 102 Ga. App. 573, 575 ( 117 S.E.2d 209).
3. A bill of sale executed out of this State, probated before a notary public, is not entitled to record in Georgia where the seal of the notary is not attached and where the official character of the notary is not certified by a clerk of the court of record in the county or city of the residence of the notary. Code §§ 29-409, 67-106.
4. Where such a bill of sale has not been attested or probated as the law requires, it is inadmissible in evidence even when placed on the record by the clerk of the court. Livingston v. Hudson, 85 Ga. 835, 838 ( 12 S.E. 17); Allgood v. State, 87 Ga. 668, 672 ( 13 S.E. 569); Gray Lumber Co. v. Harris, 127 Ga. 693 ( 56 S.E. 252); Jones Motor Co. v. Finch Motor Co., 34 Ga. App. 399, 402 ( 129 S.E. 915).
5. It was therefore error for the court, trying without a jury, the issue between the plaintiff in execution under a mechanic's lien foreclosure and the claimant asserting title under a bill of sale to secure debt, which was executed outside this State, and was not probated by the grantor before a notary public whose seal was attached or whose official character was certified by a clerk of a court of record in the county or city of the notary's residence, to admit a copy of the bill of sale to secure debt in evidence.
The court erred in denying the motion for a new trial.
Judgment reversed. Felton, C. J., and Bell, J., concur.