Calloway v. The People's Bank Of Bellefontaine

• Decision Date: 31 July 1875
• Citation: 54 Ga. 572
• Parties: Joseph Calloway, executor, et al., plaintiffs in error. v. The People's Bank of Bellefontaine et al., defendants in error.
• Court: Georgia Supreme Court

54 Ga. 572

Joseph Calloway, executor, et al., plaintiffs in error. v. The People's Bank of Bellefontaine et al., defendants in error.

Supreme Court of the State of Georgia

(Atlanta, July Term, 1875.)

Debtor and creditor. Liens. Before Judge Hill. Bibb county. At Chambers. August 5th, 1875.

This case was before this court at the last term: See 54 Georgia Reports, 441. It is sufficiently reported in the opinion.

*D. A. Walker, for plaintiffs in error.

Lanier & Anderson; Hill & Harris, for defendants.

Bleckley, Judge.

Mortgagees, with power delegated in the mortgage to sell publicly, on breach of condition after a prescribed course of advertisement, were proceeding to execute the power. Creditors of the mortgagor who held judgments junior to the mortgage, and had purchased the mortgaged premises at sheriff's sale under their judgments, applied, by bill in equity, to enjoin the intended sale by the mortgagees. The injunction was granted, and this court, at January term, 1875, reversed the order granting it. Subsequently, by amendment to the bill, additional facts were brought before the chancellor, and the motion for injunction was renewed. Among the new matters alleged and proved, it appeared that the mortgagees had another security for their debt, of equal date with their mortgage, to-wit: a trust deed from the mortgagor to one Jaques, of Tennessee, covering certain realty in that state, and twelve hundred and fifty shares of unissued stock in the East Tennessee Iron and Coal Company, a corporation chartered by that state. The chancellor seems to have been satisfied that, according to the answer and the various affidavits read at the hearing, the new matters did not establish a case for injunction, except in so far as the twelve hundred and fifty shares of stock were concerned. Deeming this stock a security that ought to be first exhausted, he ordered an injunction against the sale of the mortgaged property, (which is situated within this state,) until after the mortgagees shall have caused a sale of this stock in the Tennessee corporation, according to the terms of the trust deed. The theory of the injunction is, that the mortgagees must realize what they can out of this security in Tennessee, and pause in their proceedings against the property here, until they have demonstrated that a sale of the latter under the mortgage is necessary. The case of Denham v. Williams, 39 Georgia Reports, 312, lays down a contrary principle, *and seems to us substantially in point. It declares that a mortgagee whose mortgage covers property in Georgia and in Tennessee, cannot be...