Tarver v. New England Mortgage Security Co. , 96 Ga. 536 ( 1895 )

Lumpkin, Justice.

The record iioav before us is exceedingly voluminous; but as the case is absolutely controlled by the principles which were formulated when our judgment was announced, it is entirely unnecessary to enter upon a discussion of the various irrelevant matters brought to our attention.

Unless the wife and children of W. B. Tarver are to be treated as parties to the application for a homestead made by him as the head of a family, and also parties to the appeal entered by creditors from the judgment thereon rendered by the ordinary, there was not a single party to the homestead case who Avas also a party to the proceeding for setting aside the judgment against the homestead right, rendered in the superior court. Regarding Mrs. Tarver and her children as mere privies of the applicant, or beneficiaries for whom the homestead was sought, we could safely rest the case here, without further discussion; for if anything in procedure is settled, it is that persons not parties to a case in which a judgment Avas rendered cannot, by any sort of a proceeding among themselves alone, set that judgment aside so as to affect or bind any other person in the known world.

But how will the case stand if the wife and children áre to be regarded as actual parties to the homestead case, including the proceedings on appeal? In our judgment, the result must be exactly the same. The motion filed by the next friend of the minor children, to set aside the judgment disposing of the case on appeal, was virtually the commencement of a new case — a sort of informal, irregular and very incomplete substitute for an equitable petition. Hoav could any judgment rendered on that motion in any manner whatever affect Mrs. Tarver’s mortgagee, the New England Mortgage Security Company, which was neither a party to it, nor to the original homestead case? It is true that this mortgagee, because it took its mortgage while the appeal was pending, would have been bound by a judgment rendered in that case establishing the validity of the homestead; and for this very reason, it ought to be protected by the judgment disallowing the homestead, until that judgment has been legally set aside. It eould not lawfully be set aside in a proceeding instituted by the minor children against Mrs. Tarver, to which pro"ceeding neither the appealing creditors nor the applicant for the homestead were made parties. It certainly cannot be said that in this proceeding Mrs. Tarver represented the Mortgage Security Company; for a mortgagor does not represent a mortgagee in legal proceedings commenced after the execution of the mortgage. The judgment in the superior court disposing of the homestead case on appeal — whether right or wrong, fraudulent or. not — was binding upon all the parties to it and their privies until legally set aside; and this eould never be done without appropriate pleadings and the necessary parties, among whom, as already stated, are to be included the creditors who entered the appeal and the applicant for the homestead, and probably, if it is to be affected by the judgment rendered, the Mortgage Security Company itself.

Moreover, it would seem that the applicant for the homestead, having conveyed the premises absolutely to his wife pending the appeal, thereby abandoned his application for a homestead. This was the same, so far as he was concerned, as if he had himself dismissed the application when his conveyance was made. This abandonment stands good up to the present time, for he neither procured the judgment on appeal to be set aside, .nor was ever heard at all in the proceedings by which this was attempted. It may be that he never desired that the judgment in the appeal case should be disturbed. Surely, if it is to be set aside on the ground that it was obtained by fraud practiced upon him by the appellants (none of whom, as stated, were made parties to the proceedings to set aside), he ought to have his day in court upon this question of fraud, especially where a mortgagee of his own vendee is to be injuriously affected by the judgment to be rendered.

The lien of the mortgage being, in our opinion, for aught disclosed by the present record, absolutely perfect as to the mortgaged premises (which include the homestead), the purchaser at a sale had upon the foreclosure of the mortgage obtained a good title as against Mrs. Tarver and her children; and the court did not err in denying the prayer for injunction and receiver.

Judgment affirmed.