Winter v. Garrard

7 Ga. 183

• Court: Supreme Court of Georgia
• Decided: July 15, 1849
• Docket: No. 34
• Status: Published

Opinion

By the Court. —

Warner, J.

delivering the opinion.

It appears from the transcript of the record in this case, that John G. Winter had two executions in his favor against Richard Hooper, founded on the same debt — the one being a mortgage fi. fa. and the other having issued on a general judgment. Both fi. fas. were levied on certain real estate in the City of Columbus, described in the mortgage, and which was duly advertised for sale. On the day of sale, the property, by direction of Winter, was sold under the general judgment fi. fa. subject to the lien of the mortgage, and was purchased by Winter, for the sum of $1,068 70. At the time of the sale there was in the hands of the Sheriff a fi. fa. in favor of Garrard & Urquhart, founded on a judgment of older date than Winter’s general judgment, but younger than the lien of the mortgage. The money being in the hands of the Sheriff, Winter moved a rule against him to show1 cause why the same should not be paid over to his mortgage fi, fa. By the order of the Court, Garrard & Urquhart were made parties to the proceedings. The Sheriff in his return, stated in substance the facts before recited. Winter, the party moving the rule against the Sheriff, alleges, among other things, that the mortgage was of older date than Garrard & Urquhart’s judgment, and for an amount greatly more than the value of the property; that the value of the property sold was not more than the amount of his bid, to wit ¡ $1,068 70; that the whole interest in said property was sold, and such whole interest was not sufficient to pay it, the mortgage being for more than $6,000, and that he, Winter, was mistaken in supposing that any other than the whole interest in the property could be sold when he bid off the property.

The facts, as the same appear on the face of the record, do not appear to have been 'controverted, but the motion to pay over the money to Garrard & Urquhart’s fi. fa. appears to have been made in the Court below upon the facts as stated, inasmuch as no issue was taken or tendered thereto. The Court below ordered the money to be paid over to Garrard & Urquhart’s fi.fa. Whereupon Winter excepted,

[1.] In this State, as we have already held, a mortgage is only a security for the payment of the debt of the mortgagor.

[2.]that when mortgaged property is levied on by an execution, issuing upon a general judgment against the mortgagor, and sold subject to the incumbrance of the mortgage, that the purchaser gets only the mortgagor’s equity of redemption, and the proceeds of such sale belong to the mortgagor or his creditors. The foreclosure of a mortgage, under the Statute of this State, does not vest an ahsoJute estate in the mortgagee ; it only authorizes a sale of the property, and directs the surplus, after discharging the debt, to. be paid to the mortgagor or his agent.- Prince, 424.

If the record in this case had disclosed nothing more than that the property had been levied on and sold under the general judgment against the mortgagor, subject to the incumbrance of Winter’s mortgage, the purchaser at such sale would be understood to have purchased the mortgagor’s equity of redemption only, and the proceeds of such sale would have belonged to Garrard & Urquhart, the judgment creditors of the mortgagor.

[3.] But it appears the whole corpus of the property was sold, and sold for its fall value, and bid off by the mortgagee, under a mistake that the equity of redemption of the mortgagor could not be sold after the foreclosure of the mortgage, and that as both his mortgage fi.fa. and his general judgment fi.fa. were for the same debt, and both levied on the property, it made no difference under which it Was sold, and that the proceeds of the sale would be credited on the mortgage, it being the oldest lien upon the property.

The entire corpus of the property was sold, and sold for its full value, according to the record, and purchased by the mortgagee, leaving a large balance due on the mortgage. The mortgage was foreclosed and the fi. fa. in the hands of the Sheriff at the time of the sale, and, being the oldest lien, was equitably entitled, under the peculiar facts of this case, to claim the money for which the entire estate was sold.

Let the judgment of the Court below be reversed.