Legal Opinion

Elkins v. Edwards

Supreme Court of Georgia

Decided May 15, 1850No. 55PublishedCited by 17 opinions

Motion for foreclosure of mortgage. Tatnall Superior Court, October Term, 1849. Decided by Judge Holt. This was an application to foreclose a mortgage upon land ; resisted on the ground that the notes, to secure which, the mortgage was given, were barred by the Statute of Limitations. The Court held, that the action on the notes being barred, there was no remedy upon the mortgage, and dismissed the petition for foreclosure.

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Motion for foreclosure of mortgage. Tatnall Superior Court, October Term, 1849. Decided by Judge Holt. This was an application to foreclose a mortgage upon land ; resisted on the ground that the notes, to secure which, the mortgage was given, were barred by the Statute of Limitations. The Court held, that the action on the notes being barred, there was no remedy upon the mortgage, and dismissed the petition for foreclosure. The correctness of this decision is the only question involved in this cause. Bank of Metropolis vs. Guttschlich, 14 Pet. 32. Thayer vs. Mann, 19 Pick. 535. Miller vs.…

1Opinion of the Court

By the Court.

‘Warner, J.

delivering the opinion.

[1.] When a mortgage has been taken, to secure the payment of a promissory note, and the remedy on the note is barred by the Statute of Limitations, is the remedy on the mortgage also barred? We think not, for the reason, that the creditor stipulated, by contract, for two remedies against his debtor, to enforce the collection of his demand. One remedy was by suit upon the note, and having obtained judgment for the amount of the note, such judgment would bind all the property of the defendant. The other remedy was upon the mortgage, by petition…

2Cited by17 opinions

  1. Conway v. CaswellSupreme Court of Georgia · 1904
  2. Criss v. CrissWest Virginia Supreme Court · 1886
  3. Browne v. BrowneSupreme Court of Florida · 1880
  4. Harris v. BlackSupreme Court of Georgia · 1915
  5. Sammons v. NabersSupreme Court of Georgia · 1938

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