Dickerson v. Powell

21 Ga. 143 | Ga. | 1857

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] This case depends upon the validity of the rule absolute, at the instance of Dickerson against Clayton, in Baker-Superior Court, December Term, 1850. It recites that the. defendant had failed to pay into Court the principal and interest due upon the mortgage debt, or to show any cause,, why the equity of redemption in and to the mortgaged premises should not he forever barred and foreclosed. And therefore, it was “ordered and adjudged by the Court that the plaintiff do have and recover of the defendant the sum of three thousand five hundred and fifty one dollars principal, the sum of five hundred and twenty-nine dollars and sixteen cents interest, and the sum of five dollars twenty-fire-cents costs, and that the equity of redemption of the defendant in and to lots of land number 279 and 280, of the 11th. district of originally Early now Balter'county,” — and divers-other lots therein mentioned, “together with all the rights-thereof, from thenceforth he barred and foreclosed, and such other proceedings be liad, as are 'jminted out in the statute, in such case made and provided.”

Is not this substantially a decree for the sale of lands set forth in the rule? The amount of the debt is specified; the equity of redemption foreclosed. The statute proceeds, that “the Court shall give judgment for the amount which maybe due on such mortgage, and order the property to be sold in such manner as is prescribed in cases of execution. Cobb 570, 571. In ordering, therefore, such other proceedings to be had, as are pointed out by the statute, the Court did in effect order the property to be sold in such manner as is prescribed in cases of execution.

Knowing as we do, that this form of foreclosure has been quite common in the State, we should hesitate to declare it void, and thus shake the foundation to the title of a large amount of property.

Conceding that there was irregularity in the foreclosure, still according to the opinion of this Court, in Harford’s case, decided at Savannah, January 1856, it would not be void, and consequently could not be collaterally attacked.

[2.] When the mortgage fufa, issuing on the foreclosure we have just been considering, was levied on the land, the subject matter of the present ejectment, it was claimed by Kcdar Powell, and, upon the trial of the claim involving the identicle title now in dispute, the same was found by the jury and adjudged by the Court, to be subject to the mortgage execution, and not the property of Powell. We hold that Powell is concluded by tins judgment. It involved not only the same property, but was between the same parties, to-wit: Dickerson on the one part as plaintiff in Jt.fa., and Powell on tbe other. Powell is clearly estopped by it; and this view of the subject must settle the litigation between the parties and supersede the necessity of considering any other questions made by the hill of exceptions.

Judgment reversed.