O'Neal v. Carmichael

Simmons, Justice.

Carmichael sold to O’Neal a lot of laud, and took his note therefor and a mortgage to secure the note. O’Neal failed to pay the note, and Carmichael sought to foreclose the mortgage. O’Neal filed several pleas, which are set out in the official report. On demurrer the pleas were stricken. O’Neal excepted and brought the case' here.

There was no error in striking the pleas. They present no issue of law or fact which if tried would be sufficient to prevent the foreclosure of the mortgage. The plea mainly relied on here is as follows: 1. One of the deeds in Carmichael’s title to the defendant (the mortgage being given for purchase money of the land mortgaged) appeared upon its face to be a forgery, the signatures to it, purporting to be made by the wife and heirs at law of J. G. S. Ham, being all in the same handwriting ; and the deed fails to recite the names of the heirs or the name of said wife.

The plea does not allege that Carmichael warranted the land to O’Neal, nor that there was fraud in the transaction, nor that any portion of the purchase money had been paid. Carmichael does not seek a general judgment against O’Neal, but seeks merely to condemn the land for the purchase money.thereof; and this he is certainly entitled to do. And we cannot see how O’Neal would be injured by allowing him to foreclose and sell. It is only the land that the judgment of foreclosure will affect. In the case of Byrd v. Turpin, guardian, 62 Ga. 595, this court said: “Surely land, whether the title is good or bad, ought to be subject to its own purchase money. If the land is Byrd’s by his purchase from the guardian, he ought to pay for it; and if it is not his, but belongs to some one else, as he alleges, there being, as he avers, a better title than his own outstanding, he will not be injured by the foreclosure of the mortgage and the sale of the land to satisfy it. How will it hurt him to sell some other person’s land ?”

There is nothing in the other pleas worthy of notice ; and the judgment is Affirmed.