144 Ga. 100 | Ga. | 1915
1. On the face of the paper the mortgage fi. fa. in question was valid. If it was void on the ground that it was not based on a valid judgment foreclosing the mortgage, the burden was upon the claimant attacking the fi. fa. to show that the judgment was void.
2. The evidence was sufficient to show that a rule nisi and a rule absolute were granted.
3. Judgments on foreclosure of mortgages are not within the dormant-judgment statute (Civil Code, § 4355). Stiles v. Elliott, 68 Ga. 83 (2), 86. Nor are such judgments within Civil Code § 5950, which provides that when any person has, bona fide and for a valuable consideration, purchased real property and has been in possession thereof for four years, the property shall be discharged “from the lien of any judgment against the person from whom he purchased.” Hays v. Reynolds, 53 Ga. 328; Whittle v. Tarver, 75 Ga. 818, 822.
(а) Accordingly, the claimant could not rely upon application of either of the above-mentioned code sections to show that the fi. fa. was unenforceable against the property.
(б) If it could be said that ordinarily the fi. fa. could not proceed, because more than twenty years had expired from the maturity of the debt secured by the mortgage as a contract under seal, no such rule could apply in this case, it appearing that after the judgment of foreclosure the defendant in fi. fa. obtained a valid judgment setting apart the mortgaged property as a homestead exemption for his family, and that after the date of termination of the homestead exemption by the death of the last beneficiary thereunder, in 1905, there was insufficient time between that, date and the date of the effort to sell, in 1913, for the twenty-year limitation period to expire. The statute of limitations would not run against the fi. fa. during the life of the homestead. Craddock v. Kelly, 129 Ga. 818 (60 S. E. 193).
4. The plaintiff in fi. fa. sought merely to enforce collection of a mortgage fi. fa. at law, and did not seek any affirmative equitable relief. The fi. fa. was not barred by the' statute of limitations. Under these circumstances the claimant’s contention that the plaintiff was estopped from enforcing the fi. fa., on account of laches and lapse of time, was without merit. Bowen v. Nelson, 135 Ga. 567 (69 S. E. 1115); Poullain v. Brown, 80 Ga. 27 (5 S. E. 107); Ellis v. Smith, 112 Ga. 480 (37 S. E. 739); Moughon v. Masterson, 140 Ga. 699 (79 S. E. 561); Civil Code, §§ 4369, 4536.
Judgment affirmed.