114 Ga. 417 | Ga. | 1901
The Bank of Americus sought, by scire facias against J. B. Fowler, administrator of the estate of B. C. Williford, to revive a judgment foreclosing a mortgage. It was alleged in the hank’s petition that Williford, on April 8, 1884, executed to the bank a mortgage on certain described realty situated in Taylor county, to secure a debt of a given amount to become due October 1, 1884; that at the August term, 1886, of the superior court of Taylor county, a judgment of foreclosure was rendered, and a fi. fa. issued thereon September 3; that Williford subsequently died, and Fowler was appointed administrator upon his estate. The defendant, by a demurrer to the plaintiff’s petition, made the point that a judgment foreclosing a mortgage does not become dormant. The court overruled the demurrer, and the defendant excepted. We think the demurrer should have been sustained- and the petition dismissed. It was held, as early as Butt v. Maddox, 7 Ga. 495, that judgments on the foreclosure of mortgages are not within the dormant-judgment act, and this ruling has been consistently followed. This is so because such a judgment creates no lien. The lien of a mortgage arises by the contract of the parties in executing
Judgment r ever sed.