106 Ga. App. 817 | Ga. Ct. App. | 1962
The first question before this court is whether or not the defendants below, as conditional-sale vendees, could challenge the legality of the foreclosure proceedings by affidavits of illegality filed after executions based upon the plaintiff’s affidavits of foreclosure had been issued and levies made thereon.
Code § 67-801 provides: “When an execution shall issue upon the foreclosure of a mortgage on personal property, as herein-before directed, the mortgagor or his special agent may file his affidavit of illegality to such execution, in which affidavit he may set up and avail himself of any defense which he might have set up, according to law, in an ordinary suit upon the demand secured by the mortgage, and which goes to show that the amount claimed is not due.” This Code section establishes the statutory right of the defendants below to file their affidavits of illegality to the executions.
The plaintiff in error contends that the case of Universal C. I. T. Credit Corp. v. Pritchett, 104 Ga. App. 422 (121 SE2d 793) is authority for the proposition that the issuance of execution upon an affidavit to foreclose is a judgment or proceeding behind which
The Pritchett case, supra, cites three cases as authority for the proposition that, after a judgment of foreclosure, it is too late to raise such a defense (the same as that raised in the case at bar) by affidavit of illegality. Each of these cases is distinguishable from the situation in both the Pritchett case and the cases before us now. In Allen v. Duval Motor Co., 36 Ga. App. 336 (136 SE 479), and Hamilton v. Hamilton, 80 Ga. App. 750 (57 SE2d 301) the executions to which the court refused to allow the filing of affidavits of illegality were issued pursuant to actual judgments rendered by a court after the defendants had had their day in court. In Tanner v. Wilson, 183 Ga. 53 (187 SE 625), the court held that after an execution had proceeded to the extent of a sale of the property levied on, the execution and delivery of a deed to the realty by the sheriff, and the application of the proceeds of the sale toward the payment of the amount due on the execution, there was no proceeding on the execution to be arrested, therefore the questions raised by the affidavit of illegality, the purpose of which being to arrest an execution which is proceeding illegally, had become moot. In three other cases cited in the Pritchett case to support the statement that “an affidavit of illegality may not go behind the judgment or other proceeding upon which the fi. fa. is based,” namely: Duvall v. Barron, 14 Ga. App. 304 (80 SE 701), Childs v. State Bank of Chicago, 31 Ga. App. 533 (121 SE 254) and Courson v. Manufacturers Finance Corp., 41 Ga. App. 551 (153 SE 624), the judgments of foreclosure were rendered after adversary proceedings, not merely after summary executions based on the plaintiffs’ affidavits of foreclosure.
Judge Lumpkin, in Mell v. Moony, 30 Ga. 413, 416, resolved
Having decided that the defendants could, as a matter of right, interpose the affidavits of illegality to the executions, we now reach the question of the merits of the affidavits. Under the terms of the conditional-sale contracts, the defendants were liable to the plaintiff vendor for all payments. The contract of insurance was a separate instrument entirely and was between the insurer and the defendants. For this reason, the agreement in the insurance contract to pay the creditor any amounts payable under the disability provisions thereof was, under the cir
It follows from the above that the court erred in overruling the plaintiff’s demurrers to the affidavits of illegality.
Judgments reversed.