A. J. Williams & Co. v. Terrell
Supreme Court of Georgia
Mortgage. Statute of limitations. Judgments. Before Judge Bartlett. Morgan Superior Court. September Adjourned Term, 1874. The mortgage in this case was executed' on May 7th, 1860. Proceedings to foreclose were instituted on May. 7th, 1870. Claimant’s testator acquired title to the property in controversy after the execution of the mortgage but before the commencement of the proceedings to foreclose.
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Mortgage. Statute of limitations. Judgments. Before Judge Bartlett. Morgan Superior Court. September Adjourned Term, 1874. The mortgage in this case was executed' on May 7th, 1860. Proceedings to foreclose were instituted on May. 7th, 1870. Claimant’s testator acquired title to the property in controversy after the execution of the mortgage but before the commencement of the proceedings to foreclose. She sought to set up the statute of limitations of March 16th, 1869. This the court permitted over the objection of plaintiffs in fi. fa., and to this ruling they excepted.
1Opinion of the Court
McCay, Judge.
This case turns upon the sole question as to whether the judgment of foreclosure against the mortgagee concludes the claimant. Under our Code, a mortgage may be foreclosed either by personal service on the mortgagor or by publication. It is expressly provided (section 3965,) that if neither the mortgagor, nor his special agent or attorney, sets up any defense, it shall not be competent for any third person to do so. It follows, therefore, that this claimant, not only was not a party to the proceeding to foreclose, but that it was not competent for him, on his own motion, to have…
2Cases cited1 opinion
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