Gunn v. Wades

62 Ga. 20

• Court: Supreme Court of Georgia
• Decided: August 15, 1878
• Status: Published

Opinion

Bleckley, Justice.

A decree foreclosing a mortgage upon land was rendered in the circuit court of the United States. The land was sold under the decree, and purchased by one of the parties to the present suit. After the decree was rendered the mortgagor conveyed the land to the other party to the present suit. The title derived through a judicial sale under the decree, and the title derived through a private sale by the mortgagor are thus brought into direct collision, and the question is, which must give way ?

The whole attack is upon the decree of foreclosure. The effort is to overthrow that as fraudulent and void, or as rendered without jurisdiction. The precise point made is, that the mortgage did not in fact belong to the complainant in the federal court, who was a citizen of New York, but to Gunn, who was a citizen of Georgia, of which state the mortgagor and defendant • in the bill was also a citizen. Now, this precise question of title to the mortgage was adjudicated by the federal court as a necessary part of the the decree of foreclosure. There was a judicial determination that the mortgagor was the debtor of the complainant, and that the debt was secured by the mortgage, and that the condition of the mortgage had been broken. There is no suggestion that the mortgagor was not duly served with subpoena in the foreclosure proceeding. He was before the court with full opportunity to question the jurisdiction, or make any other defense that he thought proper to present. The decree went against him; and by him all who hold, or may hold, under him thereafter were represented. In him they fell. He, their head, was condemned, and they in him were condemned also. He was the Adam of their race. They are lost.

Judgment reversed.