174 Ga. 837 | Ga. | 1932
Misses Rosa and Cora Scarborough filed their petition in the superior court against L. A. Cary to foreclose a mortgage upon described realty, which had been executed and delivered to them by Cary, the mortgagor. The prayers were that the petitioners have a general judgment against the defendant for principal, interest, costs, and attorney’s fees, that their mortgage be foreclosed and their mortgage lien be set up against the property, and that the equity of redemption therein be forever barred. This petition and process were duly served upon the defendant. A judgment in favor of the plaintiffs was rendered at the appearance term, and execution was issued thereon. The execution was levied upon the property covered by the mortgage, the property was sold, and the sheriff was proceeding to put the purchasers (plaintiffs in execution) in possession. Thereupon Cary filed a petition praying that the decree of foreclosure be set aside, that the Misses Scarborough and the sheriff be enjoined from dispossessing him, and that the sale be declared to be void. Upon the hearing the judge refused an injunction, and Cary excepted.
In our judiciary act of 1799 a statutory method of foreclosing mortgages was provided. This act to some extent superseded the common law, and litigants could not go then into a court of equity, without special equitable grounds, to foreclose a mortgage. But in 1881 the General Assembly of this State passed the following act (omitting the caption) : “The General Assembly of the State of Georgia hereby enacts, that from and after the passing of this Act the holder of any mortgage of real or personal property, or both, whether as original mortgagee or as executor, administrator, or assignee of the original mortgage, shall be at liberty to foreclose such mortgage in equity according to the practice of courts of equity, as well as by the methods prescribed in the Code.” Acts 1880-1, p. 127. And since the passage of this act this court has rendered several decisions dealing with the
The ruling made in the second headnote requires no elaboration.
Judgment affirmed.