104 Ga. 687 | Ga. | 1898
At a time when the-title to a tract of land known as “Fontaine’s upper place” was unquestionably in George H. Fontaine, he mortgaged the same to one Sheppard. Afterwards Fontaine mortgaged the same land to Caroline Stewart and Edna Williams, and, still later, conveyed it to Mrs.
It seems no longer open to question that the holder of a junior mortgage is equitably entitled, when necessary to his protection, to make a tender to a prior mortgagee, who is proceeding to enforce his mortgage, of the principal, interest, and all costs due thereon, and demand a transfer thereof. In other words the junior mortgagee has a right to redeem in order to protect his interests. See Sheldon on Subrogation (2d ed.), § 17 et seq. A full and intelligent discussion of the subject is to be found in Jenkins v. Continental Insurance Co., 12 How. Pr. 66, where, in a very clear opinion, Woodruff, J., explains the reasons upon which this rule rests. But giving the doctrine above announced its fullest scope, it by no means follows that the plaintiffs in the present case are entitled to invoke it in th§ir behalf. In the first place, they do not satisfactorily make it appear that it is necessary to their protection that they should control the senior mortgage. According to their own allegations, “ the mortgaged property is approximately worth the amount of” this senior mortgage and the junior mortgages held by them. While-they do allege that they have been enjoined from either bidding on the property if brought to sale under this senior mortgage, or from claiming the surplus which would be in the sheriff’s hands after paying off this lien, and that accordingly a sale under it would defeat their lien and give the defendant an unconscionable advantage over them, these particular averments are not borne out by the very exhibit attached to their petition and on which they rely. On the contrary, this exhibit is a copy of the restraining order already mentioned; and it simply enjoined these plaintiffs “from levying upon or selling the land . . described in their respective mortgages, until the further order of the court.” They would therefore be entirely free to bid as purchasers, if the land should be brought to sale under the senior mortgage and was about to be sacrificed; or, in case it brought its value, they could notify the sheriff that their lien upon the property had been transferred by the sale to the proceeds arising therefrom, place
But the present holder of this senior mortgage is not the original mortgagee, whose only right was to enforce the collection of his debt, On the contrary, the defendant is, like the plaintiffs, a junior encumbrancer. He purchased the senior mortgage execution with a view to controlling the same in order that he might thus be able possibly to protect a lien held by him which is even inferior to those held by the plaintiffs, if the latter are good. As between him and them, he certainly appears to have the more need of controlling the mortgage in controversy, — if, indeed, any necessity exists that either should do so in order to secure protection. The plaintiffs have no concern in the property’s selling for more than the amount called for by the senior mortgage and those held by themselves; whereas the defendant will, if the junior mortgages are valid, lose all participation in the fund, so far as his judgment is concerned, unless the property brings enough to more than satisfy all the mortgage liens. Moreover, it is to his interest that the sale under the senior mortgage should take place at once; for,
Suppose, however, the equities, as between the plaintiffs and Tillman, were equal; that is to say, that the former in the first instance had as m uch right as did the latter to demand an assignment of the mortgage, and had in fact procured such an assignment, could he (a junior encumbrancer) bring a similar action to compel them (also junior encumbrancers) to give up the protection the mortgage afforded, after they had in good faith acquired the transfer? We apprehend not; and yet it would seem that he could present a much stronger case, in so far as showing a necessity for the court to intervene for his protection is concerned, than they have done in their behalf. The conclusion is irresistible, that where one of two junior encumbrancers, with equities evenly balanced, actually secures a transfer of a prior mortgage in the way of both, a court of equity would not be justified in depriving him of the advantage thus honestly gained in order that this very advantage might be conferred upon the other junior mortgagee. Such a thing would not be in harmony with the recognized principles of equity jurisprudence, which are daily applied in enforcing the doctrine that where equities are otherwise equal, diligence on the part of one whereby he secures a fair advantage is not only permissible, but to be encouraged.
A logical result growing out of the plaintiffs’ supposed right to compel Tillman to assign to them his superior lien would be to compel them, on his petition, to assign it back to him after they obtained it, thus presenting a sort of equitable game of battledore and shuttlecock. Our attention has not been called to any case where any court has advanced or applied the rule that one junior encumbrancer can compel another, under any circumstances, to forfeit an advantage gained by procuring a transfer of a senior mortgage. - Obviously, such a rule would
Judgment reversed.