May & Stokes v. Rawson

21 Ga. 461

• Court: Supreme Court of Georgia
• Decided: January 15, 1857
• Docket: No. 97
• Status: Published

Opinion

By the Court.

McDonald, J.

delivering the opinion.

We think that the facts stated in the bill are sufficient to give a Court of Equity jurisdiction in this case.

[1.] The mortgagor’s equity of redemption was levied on and sold. William A. Rawson, one of the defendants became the purchaser. Afterwards a foreclosure of the mortgage was commenced in the proper Court, but before the rule nisi was served, the mortgagor died. His death arrested that proceeding.

The mortgagor died insolvent. There is no administration on his estate, and there will be none. Such are the charges in the bill, admitted by the demurrer to be true.

The defendant, Rawson, and his vendees stand in the place of the mortgagee, if the sale of the mortgaged premises was regular and fair, which is to be presumed, as nothing is averred to the contrary. If' alive, it would, perhaps, be proper to make him a party, but as he is dead, and his estate insolvent, and unrepresented, and his estate, nor his heirs, if any, no longer having any interest in the subject matter of the suit, there can be no sufficient reason for delaying the mortgagees in their bill to foreclose for the want of an administration.

The remedy at law is inadequate, as there is no possibility of complying with the requisitions of the statute of foreclosure.

[2.] The defendants have every opportunity of defence against the mortgage, if there be any valid objection to the mortgage ; and if the heirs at law of the mortgagor have a meritorious defence against the mortgage, they, not being parties to this proceeding, may, perhaps, be heard.

Let the judgment of the Court below be reversed.

Judgment reversed.