Hutcher v. Hobby , 86 Ga. 198 ( 1890 )

Blandeord, Justice.

The main question in this case is whether, where property sold under a void foreclosure of a mortgage as the property of the mortgagor which has been purchased hy one at sheriff’s sale and the purchase money applied to the payment of the mortgage, and said sale and purchase is afterwards set aside and declared void, such purchaser can be subrogated to the rights which the mortgagee originally had to have his mortgage foreclosed and the property therein conveyed sold in discharge of the lien of the mortgage. It will not he necessary to consider any other question made hy this record. While we are not permitted to lift the veil of the future, we take the liberty of pushing back the shutters of the past so as to let the light shine upon this question.

We think the authorities sufficiently answer this question in the affirmative. In 2d Freeman on Executions (2d ed.), §852, it is laid down that a purchaser at a void judicial sale, under foreclosure, has the same right as the original mortgagee himself. In Brobst v. Brock, 10 Wall. 534, the court says: “It is enough that au irregular or a void judicial sale, made at the instance of a mortgagee, passes to the purchaser all the rights the mortgagee, as such, had.” In Gilbert v. Cooley, Walker’s Chancery, 494, it was held that though a statutory foreclosure of a mortgage be irregular and no bar to the equity of redemption, yet a purchaser at such sale succeeds to all the interest of the mortgagee. To the same effect see the case of Jackson v. Bowen, 7 Cowen, 13, wherein the court held that a conveyance by a mortgagee, as upon a statutory foreclosure under the power of sale in his mortgage, eveu if the proceedings to foreclose be irregular, yet carries all his interest as mortgagee to the purchaser, as well in the debt as the land mortgaged. Such a deed operates as a good assignment and the purchaser may claim as assignee. See, also, Rorer on Jnd. Sales, §224; 1 Jones on Mort. 874, subdiv. (a), §878; Freeman on Void Jud. Sales, 51, 52, 53; Davis v. Gaines, 104 U. S. 386; Bentley v. Long, 1 Strob. (S. C.) 43; Howard v. North, 5 Tex. 290; Robertson v. Bradford, 73 Ala. 116; McGee v. Wallis, 57 Miss. 638, s. c. 34 Am. Rep. 364. In 1 Story’s Eq. Jur. 478, it is said: “Such principle has the highest and most persuasive equity as well as common sense and common justice for its foundation.” The eases cited by the learned counsel for the plaintiff’ in error will be found, upon examination, to apply to the docti’iue of caveat emptor, which applies to sales upon valid judgments, and is usually invoked with reference to sales upon executions issued against the general property of the judgment debtor. See Boggs v. Fowler, 16 Cal. 559, 76 Am. Dec. 561; Smith v. Painter, 5 Serg. & R. 223, 9 Am. Dec. 344. And such we find to be the cases in the Georgia Reports cited in the brief for the plaintiff in error.

So we are satisfied that the court committed no error in overruling the demurrer filed by the plaintiff in error in this case to the petition of the defendants in error ; and the judgment is Affirmed.