Smith v. Bowne , 60 Ga. 484 ( 1878 )

Bleckley, Judge.

This is a case of which no perfectly satisfactory disposition can be made. The superior court did with it the best that was possible, and we leave the judgment to stand. All who were interested in the mortgage should have been vigilant in watching their security. When proceedings were commenced to foreclose the mortgage, they should have come forward and had themselves made parties. Not to do so was laches, and they must abide the consequences. Their due share of the fund, produced by a sale of the property under the general judgment, may be reached by this proceeding in equity ; but they cannot subject the property to a re-sale. It has been legally sold (Code, §1967), and the purchaser took it divested of the mortgage lien. TJnder the evidence, there is no certainty that it did not bring its full value. True it is that thus to rule on the lien is to treat the mortgage as foreclosed for all that was due upon the outstanding notes ; whereas the foreclosure, though in the name of the mortgagee, was for the use of but one of the holders, and took no account of the notes which were in the hands of other holders. But these holders ought’to have seen to having the foreclosure suit broad enough to comprehend their claims. To have numerous foreclosures of the same mortgage after all the notes secured by it have come to maturity, would seem anomalous. Provision is made for a single foreclosure as to the whole, where the debt matures by installments. Code, §§1965, 3970.

For cases having some resemblance to the present one, in their facts, see 2 Florida, 27; 6 Ib., 171; 1 Hilliard on Mortgages, 243, et seq., and notes; 10 Smede & M., 631.

Cited for plaintiff in error: Code, §§1965, 1967, 3973, 3974 ; 20 Ga., 723 ; 25 Ib., 316 ; 20 Ib., 344 ; 27 Ib.. 205 ; 22 Ib., 34; 32 16., 228 ; 18 Ib., 278 ; 46 16., 488 ; Code, §2787; 9 Ga., 87; 32 Ib., 234; 7 Am. Com. Law, S. P., 81; 2 Am. Chan. Dig., 208 ; 1 Johns., 580.

Cited for defendant in error: Code, §§1965, 1967, 3970.

Judgment affirmed.