1. The judge submitted to the jury, as one of the issues of fact, whether the mules had been sold to Elder or to Pol-hill. The note was not sent up in the record, nor does it appear that it was attested as required by the Civil Code, § 2776. Hill v. Ludden & Bates, 113 Ga. 320. Erom the oral testimony as to its contents it appears that it was signed by Elder as maker and Pol-hill as security. This fact would, prima facie, indicate that the sale was to Elder, and, in connection with the other evidence, was sufficient to sustain the finding of the jury that Elder had title and was authorized to mortgage to the defendant.
*9232. The defendant claimed that the purchase-money note reserved title to the mules in Anderson, and that when they were returned to him he simply came into possession of his own-and had the right to dispose of them as he thought best, even though the note was not recorded. This was true as between himself and Elder, but not as against third persons who had, without notice, acquired a valid lien from Elder, the apparent owner. Harp v. Patapsco Co., 99 Ga. 752.
3. There were several assignments of error on allowing the mortgage fi. fa. to be introduced in evidence; but it is not necessary to consider these points, since the plaintiffs’ cause of action and right to recover was based on the mortgage, and not on the mortgage fi. fa. Where mortgaged property has been concealed, with actual knowledge of the existence of the lien and for the purpose of defeating the rights of the mortgagee, a cause of action arises. There would be no necessity for foreclosing in order to levy on property which could not be found. The lien inheres in the mortgage and not in the execution, and the plaintiff would have been equally entitled to recover whether the fi. fa. had been introduced or not. Compare Coleman v. Allen, 79 Ga. 645. The demurrer was properly overruled. As to the right of the mortgagee to recover against one who has with actual notice of such mortgage concealed or destroyed the property, see Harris v. Grant, 96 Ga. 211; DeVaughn v. Harris, 103 Ga. 102 ; Reid v. Matthews, 102 Ga. 190; Benton v. McCord, 96 Ga. 393. Judgment affirmed.
By five Justices.