184 Ga. 456 | Ga. | 1937
On July 12, 1901, D. W. Krauss, one of the plaintiffs in error, executed and delivered to Mrs. D. W. Krauss (then Mrs. Minnie L.'Parker), the other plaintiff in error, a mortgage creating a lien upon Old Town Lot number 243 in the City of Brunswick, to secure a note bearing even date with said mortgage (July 12, 1901), in the principal sum of $1800, due two years after date. This mortgage was duly recorded in the office of the clerk of the superior court of Glynn County. On December 11, 1907, D. W. Krauss executed and delivered to the National Bank of Brunswick, the defendant in error, a mortgage conveying said Old Town Lot No. 243, and other property, as security for an indebtedness of $18,481.58, which mortgage further provided that it should not only secure the indebtedness
On August 6, 1935, the National Bank of Brunswick purchased said Old Town Lot number 243 at a sale thereof made by George M. Owens, sheriff of Glynn County, Georgia, pursuant to a levy thereon and a sale thereof under a mortgage-foreclosure fi. fa. issued at the May term, 1935, of the superior court of Glynn County. The National Bank went into possession' of the property, and is still in possession thereof. The debt due the bank at the time of the foreclosure of its mortgage was the principal sum of $7562.50, and was practically all money advanced by the bank to Krauss subsequently to the time the mortgage from D. W. Krauss to Minnie L. Parker became barred by the statute of limitations. Returnable' to the December term, 1935, of the superior court of Glynn County, Mrs. D. W. Krauss (formerly Mrs. Minnie L. Parker) filed suit against D. W. Krauss on the promissory note dated July 12, 1901, and due two years after date, and secured by the aforesaid mortgage of D. W. Krauss to Mrs. Minnie L. Parker, dated July 12, 1901. The sum sued for was the principal sum of $1800, with interest thereon from July 12, 1901, at eight per cent, per annum, besides ten per cent, of the principal and interest as attorney’s fees. The suit also sought a special lien against Old Town Lot number 243 to be set up and established for the amount of such judgment as Mrs. Krauss might recover against her husband. The National Bank of Brunswick was not made a party to said suit, and D. W. Krauss filed an answer admitting the allegations of said petition, and failed and refused to set up as a defense to the action the payment of the debt or plea of the statute of limitations. Returnable to the December term, 1936, of the superior court, the National Bank of Brunswick filed suit against D. W. Krauss and Mrs. Krauss (formerly Mrs. Minnie L. Parker), setting up substantially the facts stated above, praying that the mortgage from D. W. Krauss to Mrs. Parker, dated July 12, 1901, covering Old Town Lot No. 243, be adjudged to be forever barred by the statute of limitations, and that her mortgage be canceled and satisfied of record,
The court did not err in overruling the demurrers to the petition of National Bank of Brunswick, the defendant in error. The debt secured by the mortgage had long been barred by the statute of limitations when Mrs. Krauss brought suit on the note seeking judgment against D. W. Krauss, but the defendant in error could not obtain adequate relief in a common-law court. The relief sought by the bank is necessary to remove a cloud upon its title to the property in question. Unless that cloud is removed, it could not obtain full value for the property if it sought to sell it or to convert it into money or other property. It was substantial relief that it sought and was entitled to. It is urged by counsel for plaintiffs in error that the plea of the statute of-limitations is a personal privilege, and that no one but D. W. Krauss, or one who was a privy in estate, is entitled to maintain this plea. But we are of the opinion that the relation of the defendant in error to D. W. Krauss was so nearly analogous to that of a privy that it was entitled to the same relief as one would have been who was in the strictest sense a privy. In 37 C. J. 718, § 33, it is said: “One who purchases land covered by a mortgage acquires such a privity of relationship to the debtor as to entitle him to plead the statute [of limitations] against the mort7 gagee, so far as the subjection of the land itself is sought, whether the mortgagor pleads it or omits to plead it, and the same rule applies even where he expressly declines to plead it. . . A junior mortgagee may plead the statute against the enforcement of a senior mortgage.” In 17 R. C. L. 963, where the subject of the limitation of actions is discussed, the following language in respect to this question appears: "“The bar of the statute of limitations may be invoked by a junior lien claimant in all cases when the bar could be invoked by the debtor, unless he has, by agreement or otherwise, estopped himself. Such claimant may
Judgment afftfmed.