WINSTEAD v. IBINGHAM. 3
•*It will be remarked that the note itself was only transferred by delivery
to the bank, though payable to the order of Matthews & Co., and therefore
that the question does not arise whether the transfer of the legal title to the
note carried with it in equity the conveyance of the laud as a security. It
might well be doubted that if it had been indorsed it would carry an absolute
deed to the land, such as this transaction is made by our statute, over to the
indorsee. Code,   1969, 1970."
The learned justice then proceeds:
“And even if the transaction made a mortgage, it would seem that under
the act of 1873 (Acts 1873, pp. 42-47; Code, § 1996) the assignment must
be made in writing to be valid, inasmuch as the twenty—iirst section of that
act declares •that all liens herein provided for may be assigned by writing
and not otherwise;' and mortgages are provided for in that act."
This is clearly an obiter dictum, and not sound as a conclusion of
abstract law. The words "herein provided for" and "herein referred
to" are not the same in meaning, and yet Judge Jackson’s dictum
would make them so. From inquiry of my brethren more familiar
than myself with Georgia practice, I am informed that it is not con-
sidered at the bar that the act referred to as section 1996 of the Code
applies to mortgages. -
It seems to me to be clear that the terms of the third section ex-
pressly exclude mortgages from the eifects of the act. It in effect de- 4
clares that the first two sections shall not affect mortgages, which are
to remain as under existing laws. The remaining sections of the act
do not provide for mortgage liens. In fact, taking the act as a whole,
it is diilicult to see how it in any way provides for mortgage liens.
These liens existed before, and unless the last section aifects them,
nothing has been added and nothing taken away. Every other
lien referred to in the act is a statutory lien, and may be said to have
been provided for by the act; and the reason for including mortf
gages in the restriction placed on assignments of liens provided for in
the act fails. Every other lien referred to therein results from opera-
tion of law, and is likely to be secret and unrecorded, while the mort-
gage lien is part and parcel of the contract. It is evidenced usually
in writing; it is registered; the world has notice of its existence, and
that it exists for the purpose of securing the particular debt. The
mortgage is given with a view to its assignability; it is part of the con-
tract that it shall be assignable. See 9 Ga. 92. It is not so with _
statutory liens or privileges, for with regard to the lien or its assign-
ability the parties usually make no contract whatever.
My conclusion is that with regard to the assignment ofmortgageliens
the law of Georgia does not differ from the general rules of law and equity,