Roe v. Doe ex dem. Williams

38 Ga. 597

• Court: Supreme Court of Georgia
• Decided: June 15, 1869
• Status: Published

Opinion

Brown, C. J.

After a careful examination of the record before us, we lay down the following legal propositions which we think are applicable to, and control this case:

1. A deed which has not been recorded can not be given in evidence as color of title without proof of its execution.

2. Wheu both parties derive their title from the same person, plaintiffin ejectment need not show title in such person.

3.. In a proceeding to foreclose a mortgage on real estate, the Superior Court of the county where the land lies has jurisdiction of the subject matter, and a purchaser at sheriff’s sale, under a judgment of foreclosure, now claimed to have been without service, will be protected, when the rule absolute shows upon its face, that a copy of the rule nisi was served upon the mortgagor according to law.

4. When service of the rule was acknowledged by a general agent of the mortgagor, who now testifies that he was not specially authorized to acknowledge service of the rule, and it appears in evidence that the plaintiff in ejectment held the mortgaged premises under the mortgagor, by deed younger than the mortgage, and that he was in Court when the rule absolute of foreclosure was taken and made no objection to the judgment of foreclosure, it is not void as to him, and he will not be permitted to attack it collaterally for want of service in an action of ejectment against the purchaser at sheriff’s sale, of the mortgaged premises.

Judgment reversed.