116 Ga. 388 | Ga. | 1902
The executors of Mary E. Long proceeded against-Duke for the possession of certain real estate described in their petition. Subsequently the defendant’s wife, who,' according to his-
We are constrained to sustain the defense. It seems to us that the case is substantially covered by the decision .of this court in the case of Story v. Doris, 110 Ga. 65. We do not think that the law which permits a mortgage to be foreclosed at any time within twenty years, notwithstanding the bar of the debt secured by the mortgage, applies-; because the mortgage, as required by the code, -“specifies the debt to secure which it is given.” A mortgage, therefore, furnishes written evidence, under the hand and seal of the mortgagor, of the existence of the debt against the property specified, and its foreclosure is within the terms of the specialty agreement.
We have not been able to find any authority that requires another conclusion from that reached in this- case. Hughes v. Edwards, 9 Wheat. 489, involved the foreclosure of a mortgage. Lewis v. Hawkins, 90 U. S. 119, is a case where the vendor of lands gave a bond for titles and took purchase-money notes from his vendor, and it arose in a State where the vendor’s lien was recognized. It was held that a discharge in bankruptcy of the purchaser, while it would relieve him from paying the notes, would not give him title to the land, and that the vendor could proceed notwithstanding the bar of the statute of limitations as to the notes. Some of the observations of the court may seem to sustain the defendant in error, but they can not be followed, in view of the adjudication of .this court referred to above and our conclusion as to the law in
The Civil Code, § 2735, which provides that the fact “that the note or other evidence of debt is barred does not prevent the creditor thereafter availing himself of the mortgage or other security,”' is referred to by counsel for the defendants in error with special emphasis on the words “ or other security.” This section appears-in the present code for the first time, and is codified from the decision in 8 Ga., above cited, and from that in the case of Reid v. Flippen, 47 Ga. 273, the latter case being to the effect that mere delay by a creditor to sue the principal debtor until the bar of the-statute of limitations has attached as between them does not dis
Judgment reversed.