Smith v. Bowne
| Decision Date | 31 January 1878 |
| Citation | 60 Ga. 485 |
| Parties | Smith et al. v. Bowne, et al. |
| Court | Georgia Supreme Court |
Equity. Mortgage. Levy and sale. Before Judge Wright. Dearing Superior Court. November Term, 1877.
Smith et al. filed their bill against Bowne et al., making, in substance, the case presented by the head-note, and praying *that the land resold under the mortgage lien, and the proceeds be appropriated to the satisfaction of thenotes held by them, and the balance paid to the purchasers at the prior sale under the common law execution.
The case was submitted to the chancellor without the intervention of a jury, who decreed that the sale already had divested the lien of the mortgage as to all the notes, and that the purchasers acquired an unincumbered title; that the lien of the mortgage attached to the proceeds of the sale, and that complainants might have leave to enter a rule absolute to enable them to proceed against such proceeds.
To this decree complainants excepted.
Bower & Crawford, for plaintiffs in error.
J. C. Rutherford, by Jackson & Lumpkin; W. O. Fleming, for defendants.
This is a case of which no perfectly satisfactory disposition can be made. The superior court did with it the best that was possible, and we leave the judgment to stand. All who were interested in the mortgage should have been vigilant in watching their security. When proceedings were commenced to foreclose the mortgage, they should have come forward and had themselves made parties. Not to do so was laches, and they must abide the consequences. Their due share of the fund, produced by a sale of the property under the general judgment, may be reached by this proceeding in equity; but they cannot subject the property to a re-sale. It has been legally sold (Code. § 1967), and the purchaser took it divested of the mortgage lien. Under the evidence, there is no certainty that it did not bring its full value. True it is that thus to rule on the lien is to treat the mortgage as foreclosed for all that was due upon the outstanding notes; whereas the foreclosure, though in the name of the mortgagee, was for the use of but one of *the holders, and took no account of the notes which were in the hands of other holders. But these holders ought to have seen to having the foreclosure suit broad enough to comprehend their claims. To have numerous foreclosures of the same mortgage after all the notes secured by it have come to maturity, would seem anomalous....
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Hinton v. Burns
...Manget & Co. v. Blake & Madden, 135 Ga. 71, 68 S. E. 837; First Nat. Bank of Cornelia v. Burruss & Co., 144 Ga. 857, 88 S. E. 190; Smith v. Bowne, 60 Ga. 485. We therefore think the court was correctin dismissing the intervention and awarding the surplus fund to J. K. Burns. Judgment affirm......
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Ga. Realty Co v. Bank Of Covington
...389, 66 S. E. 1034. The fact that the Georgia Realty Company had not sued its notes to judgment cannot alter the principle. Smith et al. v. Bowne et al., 60 Ga. 485. 4. Since the judge of the city court of Atlanta in this proceeding had the authority to determine the respective rights of th......
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Hinton v. Burns
...Manget & Co. v. Blake & Madden, 135 Ga. 71, 68 S.E. 837; First Nat. Bank of Cornelia v. Burruss & Co., 144 Ga. 857, 88 S.E. 190; Smith v. Bowne, 60 Ga. 485. therefore think the court was correct in dismissing the intervention and awarding the surplus fund to J. K. Burns. Judgment affirmed. ......
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Georgia Realty Co. v. Bank of Covington
... ... intervene. From a judgment in favor of the Bank of Covington, ... the Georgia Realty Company brings error. Reversed ... Smith, ... Hammond & Smith, of Atlanta, for plaintiff in error ... R. W ... Milner, of Covington, and Dorsey, Shelton & Dorsey, of ... 1034. The fact that the Georgia ... Realty Company had not sued its notes to judgment cannot ... alter the principle. Smith et al. v. Bowne et al., ... 60 Ga. 485 ... 4 ... Since the judge of the city court of Atlanta in this ... proceeding had the authority to ... ...