Cox v. Taylor

Guerry, J.,

dissenting. The plaintiffs in the court below foreclosed their mortgage against the defendant, plaintiff in error here, in tile sum of $418. Execution was issued thereon and the following entry appears upon said execution: “The property described in the within fi. fa. was sold under and by virtue of a distress warrant against B. H. & W. G. Cox in favor of G. C. McKenzie, agent vs. B. II. & G. C. Cox, and after paying off said distress warrant and the costs of court thereon there was left in my hands the sum of $117.95 which is held subject to the within mortgage fi. fa., there having been no affidavit of illegality filed with me and no bond filed with me as required by law to arrest said mortgage fi. fa. T. Y. Beard, sheriff.” This entry of the sheriff was not dated. The mortgagor filed an affidavit of illegality to this foreclosure alleging that he was not a resident of the county where the mortgage was foreclosed, together with other grounds of attack. He gave bond therewith conditioned, “should the property' or the amount derived therefrom be forthcoming when called for by the levying officer, then this bond to be void; otherwise of full force and effect.” The bond recited that the property had been sold, now being in the form of $150 in cash in the hands of the sheriff of Colquitt County.

The. language of the bond “be forthcoming when called for by the levying officer,” is in the language of the Code, § 67-803. The return of the officer and the bond itself show that the money was being held in lieu of the property because the property had been sold before the illegality or bond was filed. The officer surrendered the money to the defendant in fi. fa. in place of the property. The language of the bond: “Now, should the property, or the amount derived therefrom be forthcoming” (which was the proceeds of the property at a sheriff’s sale), is in the language of the statute and in accordance with the facts as shown by the record. It is apparent from the record that the property in this case.was not levied on and sold under the mortgage foreclosure, but was sold by virtue of a distress warrant; and that the surplus, after paying the distress warrant, was retained by the sheriff subject to the fi. fa-“Property mortgaged may be sold under other process, subject to the lien of the mortgage. If the mortgage shall be 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.” Code, § 67-118. The mortgage of Taylor Brothers could not claim this money of the sheriff unless it had been foreclosed in the county of the residence of the defendant. Rich v. Colquitt, 65 Ga. 113. In a money rule a mortgage can not claim the money if it has not been foreclosed. I am of the opinion that the bond in this case1 was in compliance with the statute, that the affidavit of illegality set up a valid defense, if it be sustained by evidence, and that the court erred in dismissing the illegality.