Boisclair v. Jones

36 Ga. 499

• Court: Supreme Court of Georgia
• Decided: December 15, 1867
• Status: Published

Opinion

Warner, C. J.

The mortgagor executed the mortgage upon the property as his own estate, to secure the payment of hisf individual debt. In a proceeding to foreclose the mortgage as against ■ him,, he cannot be permitted to allege that the property so mortgaged by him as his own individual property, was not his property, but was trust property which he had no right to mortgage. The maker of a deed cannot claim adversely to his deed, but is estopped from denying his right to sell and convey. Revised Code, Section 2657. "When the mortgage shall be foreclosed against the mortgagor, and the property sold, or offered for sale under the judgment of foreclosure, and other parties have either a legal or equitable interest in it, they can assert their rights to it at the proper time, and in the proper manner, if they shall think proper to do so. McDougald vs. Hall, 3d Kelly’s Rep., 174. Whatever right or title the mortgagor conveyed to the mortgagee, by his mortgage deed, may be foreclosed as against him in this proceeding, there being no other parties before the Court but the mortgagor and the mortgagee.

Let the judgment of the Court below be affirmed.