Ragan v. Coley & Brother , 4 Ga. App. 421 ( 1908 )

Hill, C. J.

(After stating the facts.)

1, 2. The amendments to the original proceedings for the foreGosure of the mortgage made by Boone, agent, were properly allowed by the court. The Civil Code, §5122, provides, that “All affidavits for the foreclosure of liens, including mortgages, and all affidavits that are the foundation of legal proceedings, and all counter-affidavits, shall be amendable to the same extent as ordinary declarations.” See also §5105; Nicholson v. Whaley, 90 Ga. 257 (16 S. E. 84). In the case of Burgwyn Tobacco Co. v. Bentley, 90 Ga. 508 (16 S. E. 216), the Supreme Court holds that all the proceedings in the foreclosure of a mortgage on personal property are amendable, from the affidavit of foreclosure to the mortgage fi. fa. And we think this decision is broad enough to cover all the amendments allowed by the court to the foreclosure proceedings in the present case. The amendment of the transfer of the mortgage fi. fa., which more specifically set out the right, title, and interest therein of the transferor, was properly allowed. We can imagine no possible objection to adding to such transfer that Boone, agent, transferred it not only as agent, but also as landlord and mortgagee. Certainly no one but the transferee could be heard to object to such amendment. This amendment was wholly unnecessary, but entirely harmless.

3. While we do not think it necessary, in the view we take of the case, to decide whether the second foreclosure made by Coley & Brother was properly admitted, in evidence on the hearing of the rule, yet we can not see any reason why they would not have had the right to so foreclose, if the first foreclosure was irregular. It is not contended that they did not have a good title to the note and the mortgage, and it is not denied that they bought the same for value, without any notice of any defect in the foreclosure proceedings. If their title to the note and mortgage was valid, it follows that they clearly had the right to foreclose the mortgage.

4. The plaintiff in error insists, that Coley & Brother were not entitled to the fund, because, as holders of the mortgage fi. fa., they did not comply with the law, in that they did not place their fi. fa. in the hands of the officer and cause the property to be sold free from the mortgage; that the effect of this failure was that the horse was sold subject to the mortgage; that their money is still in the horse and he can be resold under the mortgage fi. fa., since nothing but the equity of redemption had been sold under the common-law fi. fa. The Civil Code, §2741, provides: “Property mortgaged may be sold under other process, subject to the lien of the mortgage. If the mortgage is foreclosed, the mortgagee may place his execution in the hands of the officer of the law making the sale, and cause the title unincumbered to be sold, and claim the proceeds according to the date of his lien.” It is contended that the plain meaning of this language is that the holder of the mortgage fi. fa. must place it in. the hands of the officer before the sale, and cause the property to be sold discharged from his lien. Conceding that this interpretation of the statute is correct, yet the evidence clearly shows that the property in question was sold free from the lien of the mortgage; for it appears, from the agreed statement of facts, that the mortgage fi. fa. had been levied upon the property prior to the levy of the common-law fi. fa., and that at the time of the sale by the officer under the common-law fi. fa., the mortgage fi. fa. was in his possession, and the holder thereof claimed the proceeds of the sale; and it further appears that the mortgaged property brought its full value at that sale. The Civil Code, §2758, provides: “If other fi. fas. are levied on the mortgaged property, and the same is sold, the mortgage fi. fa. may nevertheless claim the proceeds of the sale, if its lien is superior.” Here the property was levied upon by a common-law fi. fa. It was sold, and it is admitted that the lien of the mortgage and of the mortgage fi. fa. was superior to that of the common-law judgment and execution.

5. Disregarding all mere technical questions of law, we think the judgment awarding the fund to the mortgage fi. fa. was clearly right. It is well settled that money rules are in the nature of equitable proceedings, and that the rights of the respective claimants should be determined according to equitable principles. Coleman v. State 75 Ga. 63; Cofer v. Benson, 92 Ga. 795 (19 S. E. 56). Mere irregularities of procedure will not be allowed to defeat legal and equitable rights. The admitted facts show in this case that the fund in court was realized from the sale of mortgaged property; and it was not controverted that the mortgage lien on the property was of superior dignity to that of the common-law fi. fa. It was not controverted that the mortgagee named therein had the legal title to the mortgage and the note secured thereby, whether he held such title for himself alone, or for himself in common with others, and that he transferred to Coley & Brother the legal title to the mortgage and the note in transferring the mortgage fi. fa. The statement made by the affiant, in his affidavit to foreclose the mortgage, that the mortgage was owned by Miss Ida Purifoy, was immaterial. Certainly it becomes immaterial, according to every principle of equitt when it is admitted that she had received the proceeds arising from the transfer of the mortgage by the agent. She could not contest the-validity of the transfer, under these circumstances, and certainly one who held an inferior lien to the mortgage would not be allowed to do so. Strictly speaking, we think the foreclosure of this mortgage was by B. F. Boone as an individual, and the note and mortgage were made payable to him as an individual, and were transferred by him as an individual; because the word “agent,” following his name in all of these instruments, without more, has no legal effect. It is also conceded that Coley & Brother paid for this mortgage and note and the mortgage fi. fa. without notice of any irregularity in the transfer of the mortgage; for neither the note, the mortgage, nor the mortgage fi. fa. contained anything to put them on notice that any one was interested in the mortgage property, except B. F. Boone, agent. They were not called upon, by the use of the word “agent,” to inquire as to Boone’s authority to make the transfer; for, as a matter of law, the word “agent” meant nothing, and Boone, under the law, had authority as an individual to make such transfer. But whoever had any equitable interest in the property covered by the mortgage, Boone had the legal title thereto, and the right, therefore, to assign or transfer such title. And in addition to this statement of the law, which we think clearly establishes the legal title of Coley & Brother to the mortgage fi. fa., where it also appears that the money which they paid in good faith for such legal title went to those who had the beneficial interest in the property covered by the mortgage, they were entitled to the fund in court arising from the sale of the mortgaged property. The judgment of the trial court is therefore Affirmed.