131 Ga. 725 | Ga. | 1908
An execution issued against a mortgagor on the foreclosure of a mortgage on personalty. The defendant filed with the levying officer an affidavit of illegality, setting up a partial payment, and a continuing tender of the balance of the debt, made after the maturity of the mortgage, and prior to its foreclosure. The affidavit of illegality was accepted by the levying officer, and together with the mortgage execution it was returned to the superior court for trial. On the call of the case the mortgagee moved to strike the affidavit of illegality, on the ground that the “affidavit of illegality affirmatively set out that said defendant is due the plaintiff certain sums of money on an execution, and that the said sums have never been paid to the sheriff, and that there has never been any legal or proper offer on the part of the defendant to pay said amounts so admitted to be due, so as to authorize.
The contention of the plaintiff, in error is that payment of the amount admitted in the illegality to be due is a- condition precedent to its acceptance by the levying officer, and its return into court. This contention is based upon rule 30 of the superior court, as embraced in the Civil Code, §5661, which-is as follows: “When an affidavit of illegality is made on account of partial payment made on the execution, the defendant, at the time of making such affidavit, must pay the amount he admits to be due, or the sheriff shall proceed to raise that amount and accept the affidavit for the balance.” We do not think that this rule has any application to affidavits of illegality filed to the foreclosure of a mortgage on personalty. Its operation is confined to the course to be pursued where the defendant desires a stay of an execution, where partial payment has been made on an execution based on a final judgment. When an execution issues on a judgment rendered by a court of competent jurisdiction, a defendant who has had his day in court is cut off from any defense which he might have urged before judgment. If he has made partial payments on the execution, but admits that there is still a balance due thereon, the rule of court requires that he should pay to the levying officer this balance, in order to arrest its progress. The reason for the rule is apparent. The defendant whose entire defense relates to matters occurring subsequent to the final judgment does not attack the validity of the judgment, or defend against the demand which is concluded by the judgment, and he should not be permitted to stay the levying officer from realizing on the execution the amount admitted to be due. But the situation is entirely different in the case of a mortgage foreclosure on personalty. "In this procedure the defendant is given the opportunity for the first time to make his defense to the mortgage debt after the mortgage has been foreclosed and the execution has been levied upon the mortgaged property. Against a foreclosure on personalty the statute allows the mortgagor to 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 no.t due. Civil Code, §2765. In order to avail himself of any defense to the mortgage, he must either give bond with security for the forthcoming of the
While the pleading in which the mortgagor makes his defense is called an affidavit of illegality, it might more properly be designated a counter-affidavit. When it is filed the mortgage execution is converted into mesne process, and becomes mere pleading. Nothing is adjudicated by the plaintiff’s affidavit of foreclosure, and the mortgagor’s defense goes to the merits of the case. In an issue
Judgment affirmed.
