Conclusiveness of judgment.

- Ordinarily a judgment of foreclosure bars only the rights of the mortgagor, the mortgagor's heirs and legal representatives. Howard v. Gresham, 27 Ga. 347 (1859).

A decree foreclosing a mortgage is conclusive upon the defendant in the bill, and upon any purchaser from defendant who purchased after the decree was rendered. Gunn v. Wades, 62 Ga. 20 (1878).

The foreclosure of a mortgage is conclusive between parties and privies, and in a subsequent controversy between them evidence is not admissible to go behind the judgment of foreclosure. Spinks v. Glenn, 67 Ga. 744 (1881).

Amendment to rule absolute to show credits is not allowed. Cherry v. Home Bldg. & Loan Ass'n, 57 Ga. 361 (1876).

Impeachment of judgment.

- Upon the trial of a claim case, where the claimant claims through a judgment of foreclosure of mortgage, made by the defendant in execution to defendant's vendor, the plaintiff in execution may impeach that judgment and mortgage, and prove it fraudulent on the trial. Williams v. Martin, 7 Ga. 377 (1849).

Burden of proof in impeachment.

- Where on its face a mortgage fi. fa. is valid, the burden of proving that it was based on an invalid judgment of foreclosure is on the claimant. Redding v. Anderson, 144 Ga. 100, 86 S.E. 241 (1915).

A judgment foreclosing a mortgage, is not within O.C.G.A. § 9-12-61 providing for the dormancy of judgments. Butt v. Maddox, 7 Ga. 495 (1849); Horton v. Clark, 40 Ga. 412 (1869); Redding v. Anderson, 144 Ga. 100, 86 S.E. 241 (1915).

Sufficiency of judgment.

- A judgment of foreclosure of real estate which substantially complies with O.C.G.A. § 44-14-187 is sufficient. Dickerson v. Powell, 21 Ga. 143 (1857).

On the trial of a rule to foreclose a mortgage, the main question is, whether the plaintiff is entitled to recover, as respects the mortgaged property title debt which the mortgage describes, and if not the whole, how much of it. A verdict for so many dollars as principal, with interest, is sufficiently formal and full. O.C.G.A. § 44-14-187 directs what judgment is to be rendered by way of rule absolute in the foreclosure proceeding. Byrd v. Turpin, 62 Ga. 591 (1879).

Court's judgment without jury.

- When the mortgagor, upon proceedings to foreclose a mortgage, fails to pay the money into court as directed by the rule nisi duly served upon the mortgagor, and also fails to set up and maintain any defense against the foreclosure of the mortgage, there is, in such case, no issue for trial by jury, and it is the province of the court, upon hearing competent and sufficient evidence, to render judgment under O.C.G.A. § 44-14-187 for the amount which may be due on such mortgage and to order the mortgaged property sold. Ray v. Atlanta Banking Co., 110 Ga. 305, 35 S.E. 117 (1900). See also Sutton v. Gunn, 86 Ga. 652, 12 S.E. 979 (1891).

Levy on property in possession of third person.

- It is not a trespass for a sheriff to levy a mortgage fi. fa. upon the mortgaged property named in the process, in the possession of a third person and held by that person adversely to the mortgagor - in such a case the sheriff has no discretion, but must levy at all events. Wallace v. Holly, 13 Ga. 389, 58 Am. Dec. 518 (1853).

Property described in levy.

- Whether the property described in the levy was the same as that described in the mortgage and the rule absolute was a question of fact and not of law. Ray v. Atlanta Banking Co., 110 Ga. 305, 35 S.E. 117 (1900).

Effect of omissions on levy.

- Where the sheriff, while making the levy, omitted to recite that the land was levied upon as the property of the defendant named in the execution, the levy was not for that reason void, or inadmissible upon the trial of a claim case between the plaintiff in execution and a third person. Thorton v. Ferguson, 133 Ga. 825, 67 S.E. 97, 144 Am. St. R. 226 (1910).

Rights of purchaser at sale.

- A bona fide purchaser of land under a mortgage fi. fa. will be protected in title, notwithstanding any irregularity in the proceeding of the foreclosure. DeLorme v. Pease, 19 Ga. 220 (1856).

Where property sold under a void foreclosure of a mortgage as the property of a mortgagor, has been purchased at sheriff's sale, and the purchase money applied to the payment of the mortgage, and the sale and purchase are afterwards set aside and declared void, the purchaser can be subrogated to the rights which the mortgagee originally had to have the mortgage foreclosed and the property therein conveyed sold in discharge of the lien of the mortgage. Dutcher v. Hobby, 86 Ga. 198, 12 S.E. 356, 22 Am. St. R. 444, 10 L.R.A. 472 (1890).

Bona fide purchaser in possession for four years.

- Judgments on foreclosure of mortgages are not within the provisions of O.C.G.A. § 9-12-93, providing that a bona fide purchase of real property and possession for four years discharges the property "from the lien of any judgment against the person from whom he purchased." Redding v. Anderson, 144 Ga. 100, 86 S.E. 241 (1915).

Resale.

- Where, under the express or implied terms of a sale, the purchase price was to be paid upon delivery of the goods, and the vendor, without collecting the purchase price, nevertheless proceeded to make delivery in pursuance of the contract, and the vendee, after such delivery, proceeded to resell the goods to a bona fide purchaser for value, the rights of such innocent third person were governed by the provisions of O.C.G.A. §§ 44-14-187 through44-14-189 relative to conditional sales, and the vendor could recover the goods from such innocent purchaser, where the terms of sale had not been reduced to writing and recorded as required by these sections. Brumby Chair Co. v. City of Columbus, 46 Ga. App. 163, 167 S.E. 221 (1932).

Rights of mortgagor's creditors.

- It was held under O.C.G.A. § 44-14-187 that if a mortgage debt be infected with usury, and the mortgagor is insolvent, it is the equitable right of a creditor of the mortgagor to compel the mortgagee to purge the claim of the usury charged their common debtor. Parker v. Barnesville Sav. Bank, 107 Ga. 650, 34 S.E. 365 (1899).

Cited in Lathrop & Co. v. Brown, 65 Ga. 312 (1880); Ach & Co. v. Milam, 118 Ga. 105, 44 S.E. 870 (1903); Dumas v. Tyus, 147 Ga. 307, 93 S.E. 894 (1917); James v. Douglasville Banking Co., 26 Ga. App. 509, 106 S.E. 595 (1921).

ALR.

- Priority as between judgment entered and deed or mortgage filed on same day, 37 A.L.R. 268.

Financial depression or lack of market as ground for enjoining sale under a mortgage or deed of trust to secure debts, 82 A.L.R. 976; 90 A.L.R. 1330; 94 A.L.R. 1352; 96 A.L.R. 853; 97 A.L.R. 1123; 104 A.L.R. 375.

Protection of mortgagor or owner of mortgaged property, on foreclosure sale, by fixing upset or minimum price, requiring credit of specified amount on mortgage debt, or denying or limiting amount of deficiency judgment, 85 A.L.R. 1480; 89 A.L.R. 1087; 90 A.L.R. 1330; 94 A.L.R. 1352; 96 A.L.R. 853; 97 A.L.R. 1123; 104 A.L.R. 375.

Mortgagor in possession as liable to receiver for occupational rent; right to receiver as affected by mortgagor being in possession, 91 A.L.R. 1236.

Remedy of, and damages recoverable by, mortgagor in case of a premature sale under mortgage, 97 A.L.R. 1059.

Insurance: mortgagor or privy as sole and unconditional owner after judgment of foreclosure and during redemption period, 107 A.L.R. 1201.

Right of creditor or mortgagee to redeem from his own sale, 108 A.L.R. 993.

Personal liability to mortgagor, as distinguished from mortgagee, of vendee of mortgaged premises who does not in terms assume or agree to pay mortgage, 111 A.L.R. 1114.

Reacquisition by mortgagor, or his grantee, of the title through foreclosure of first mortgage as affecting rights under a second mortgage to which the property was subject before the foreclosure, 111 A.L.R. 1285.

Judicial foreclosure of mortgage as affecting one who was not personally served within jurisdiction and did not appear, as regards the value of the property or the adequacy of the bid in foreclosure, in a subsequent action to enforce his personal liability on the obligation secured by the mortgage, 120 A.L.R. 1366.

Rights and remedies of mortgagee where mortgaged property is bid in on foreclosure as less than mortgage debt and it is redeemed by mortgagor or latter's grantee, 128 A.L.R. 796.

Price obtained at foreclosure sale as affecting liability of guarantor of mortgage debt, 128 A.L.R. 975.

Creditor or encumbrancer redeeming from mortgage sale as acquiring title and rights of sale purchaser, 135 A.L.R. 196.

Revivor or other steps necessary in event of mortgagee's death after sale of property but before confirmation of sale, 150 A.L.R. 502.

Redemption by trustee or beneficiaries from mortgage foreclosure sale, 159 A.L.R. 477.

Redemption rights of vendee defaulting under executory land sale contract after foreclosure sale or foreclosure decree enforcing vendor's lien or rights, 51 A.L.R.2d 672.

Foreclosure sale of mortgaged real estate as a whole or in parcels, 61 A.L.R.2d 505.

Rights of holder of "first refusal" option on real property in event of sale at foreclosure or other involuntary sale, 17 A.L.R.3d 962.

Mortgages effect upon obligation of guarantor or surety of statute forbidden, or restricting deficiency judgment, 49 A.L.R.3d 554.

Right of vendee under executory land contract to lien for amount paid on purchase price as against subsequent creditors of or purchasers from vendor, 82 A.L.R.3d 1040.