Summary
In Bank of Cumming v. Chapman, 245 Ga. 261 (264 S.E.2d 201), the Supreme Court has vacated our judgment in Chapman v. Bank of Cumming, 150 Ga. App. 85 (256 S.E.2d 601), with direction that the case be reconsidered in light of its opinion.
Summary of this case from Chapman v. Bank of CummingOpinion
35221.
ARGUED SEPTEMBER 17, 1979.
DECIDED FEBRUARY 20, 1980.
Certiorari to the Court of Appeals of Georgia — 150 Ga. App. 85.
Edmund A. Waller, for appellant.
Sartain Carey, Jefferson W. Willis, for appellee.
This certiorari was granted to review the Court of Appeals reliance upon Yancey Bros. Co. v. Dehco, Inc., 108 Ga. App. 875, 877 (2) (b) ( 134 S.E.2d 828) (1964), cert. den., which states, "The question of the sufficiency of the description in a recorded instrument to impart constructive notice is for the jury except in clear cases." We conclude that the statement is not incorrect but may be subject to misinterpretation because it does not clearly delineate between the sufficiency of the description and the identity of the property. In our opinion the distinction is stated succinctly in First Nat. Bank v. Spicer, 10 Ga. App. 503 (1) ( 73 S.E. 753) (1911), "The question of the sufficiency of description of property in a mortgage is one of law, for the court; that of the identity of the property mortgaged is one of fact, to be decided by the jury." See also Farkas v. Duncan, 94 Ga. 27 ( 20 S.E. 267) (1894); Thomas Furniture Co. v. T C Furniture Co., 120 Ga. 879 ( 48 S.E. 333) (1904); Reynolds v. Jones, 7 Ga. App. 123 ( 66 S.E. 395) (1909); Code Ann. § 109A-9-110.
Chapman v. Bank of Cumming, 150 Ga. App. 85 ( 256 S.E.2d 601) (1979).
Judgment vacated and remanded for reconsideration in light of this opinion. All the Justices concur.