Denham v. Williams

| Ga. | Jun 15, 1869

Brown, C. J.

1. The recital in the affidavit of the attorney in this case, that he was, with his partner, the attorney of the mortgagee, is sufficient compliance with section 3895 of the Code, and the exception to the affidavit was properly overruled.

2. On the 24th day of October, 1866, a Justice of the Inferior Court had authority to administer an oath to foreclose a mortgage on personal property, and on the 29th day of the same month the Judge of the County-Court had authority to issue the order of foreclosure. Such an order of foreclosure issued by the Judge of the County-Court of Mitchell county, upon an affidavit made by the attorney of the mortgagee before a Justice of the Inferior Court of Dougherty county, was a legal proceeding.

3. We think the charge of the Court that Williams had the right to compel the Denhams to go to Tennessee and foreclose their lien on the Tennessee land before they could enforce it on the property in Mitchell, was erroneous. We do not understand the rule to be, that a creditor who has a lien on two funds, or two parcels of property, one within the jurisdiction of the Court, and the other beyond its jurisdiction, will be compelled, in favor of a younger lien which covers only the property in this State, to go into another jurisdiction and pursue his remedy there, before he can proceed against the property in this State. The rule is correctly laid dowii in section 1939 of the Revised Code, in these words : “As among themselves creditors must so prosecute their rights as not unnecessarily to jeopard the rights of others; hence a creditor having a lien on two funds of the debtor equally accessible to him, will be compelled to pursue the one on which other creditors have no lien.”

It cannot be said that the fund or land in Tennessee which was shown to be covered with liens there, is equally as accessible to the claimants as the property in Mitchell county. It follows, therefore, that they should not be driven out of the State to seek their rights in another jurisdiction, when they have a lien on sufficient property in this State to satisfy their debt. If Williams wished to avail himself of the benefit of the lien on the Tennessee lands, he should, while the mortgage was still in force, have taken the proper steps to pay off the mortgage to the claimants, and have taken an assignment and the control of it, for his own benefit. In this way he might have acquired the right to go upon the Tennessee lands at his own expense, but he had no right to compel the holders of the older mortgage to go there at their expense for his benefit.

4. The award made by the arbitrator in this case was not attached for fraud, accident, or mistake, or for any other legal reason. It was made the judgment of the Court, and must be held to be prima facie correct, and if the junior mortgagee claims that it operates as a fraud upon his rights, he will be held to proof of actual fraud, the presumption being in favor of the judgment. If no fraudulent intent is shown, the simple fact that the senior mortgagee, whose mortgage covered the growing crop and other property, and was to secure payment of the purchase-money for the stock, etc., on the plantation, as well as the annual rents, was required by the award and judgment of the Court to pay, and did pay, a certain sum of money to the mortgagor, is no sufficient evidence of fraud upon the rights of the junior mortgagee whose mortgage covered only the growing crop, to justify the jury in finding for the junior mortgagee, the more especially when the payment to the mortgagor was made by allowing him credit on a note given for money loaned him by the senior mortgagee to purchase supplies to make the very crop which is covered by both mortgages.

Judgment reversed.