O.C.G.A. § 44-14-44 (2019)

Annotations

JUDICIAL DECISIONS O.C.G.A. § 44-14-44 does not apply in case of two mortgages, unless both mortgages are given by the same person on the same property. Pasley v. Beland, 111 Ga. 828, 36 S.E. 296, 1900 Ga. LEXIS 771 (1900); Crawford County Bank v. Britt-Hightower Co., 17 Ga. App. 804, 88 S.E. 691, 1916 Ga. App. LEXIS 939 (1916); Stanton v. Hargett, 93 Ga. App. 508, 92

S.E.2d 328, 1956 Ga. App. LEXIS 783 (1956). Option of holder of mortgage. - Under O.C.G.A. § 44-14-44 the holder of the mortgage has the option to place mortgage fi. fa. in the hands of the officer, cause the title unincumbered to be sold, and claim the proceeds, according to the date of the lien, or else the mortgagor may

simply allow the sale to proceed subject to the lien of mortgage. Kirby v. Reese, 69 Ga. 452, 1882 Ga. LEXIS 243 (1882). See also Toney v. Puckett, 18 Ga. App. 514, 89 S.E. 1102, 1916 Ga. App. LEXIS 1076 (1916). Rights of holder of unforeclosed mortgage. - The holder of an unforeclosed mortgage cannot claim at law the balance of a fund arising from the sale of the property covered by the mortgage, after paying the judgment under which it was sold, and which was older than the mortgage, but the holder can make such a claim in equity, and this could be done on a money rule, with proper allegations. Baker & Hall v. Gladden, 72 Ga. 469, 1884 Ga. LEXIS 281 (1884). The holder of an unforeclosed mortgage on property brought to sale under a general judgment junior to the mortgage, could not, without the consent of the mortgagor and the plaintiff in execution, cause the entire estate to be sold and afterwards claim the fund in the sheriff’s hands. Hynds Mfg. Co. v. Oglesby & Meador Grocery Co., 93 Ga. 542, 21 S.E. 63, 1893 Ga. LEXIS 476 (1893). An unforeclosed mortgage cannot be the basis of a claim for money on a rule to distribute, unless it be shown that the holder of the mortgage would otherwise be remediless. De Vaughn v. Byrom, 110 Ga. 904, 36 S.E. 267, 1900 Ga. LEXIS 657 (1900). Lien of mortgage superior to subsequent judgment. - The lien of a mortgage was superior to a subsequent judgment, in a distribution of proceeds of the sale under O.C.G.A. § 44-14-44. Ragan v. Coley & Bro., 4 Ga. App. 421, 61 S.E. 862, 1908 Ga. App. LEXIS 321 (1908). Illegal foreclosure. - A fi. fa. based on an illegal foreclosure has no standing in court and cannot take proceeds of the sale. Rich v. Colquitt, 65 Ga. 113, 1880 Ga. LEXIS 113 (1880). Setting up outstanding title in third person. - One claiming property under levy cannot defeat the plaintiff in execution by setting up outstanding title in a third person; and it is equally true that one claiming funds by intervention in a rule to distribute money, derived from the sale of property under execution, can-

not support such a claim by showing that title to the property was vested in some person other than the defendant in execution. Crawford County Bank v. Britt-Hightower Co., 17 Ga. App. 804, 88 S.E. 691, 1916 Ga. App. LEXIS 939 (1916). Lien of older judgments divested by sale on foreclosure. - The sale of property under an execution issued upon the foreclosure of a mortgage thereon, will divest the lien of a judgment against the mortgagor of older date than such mortgage, and will pass to the purchaser at such sale the title to the mortgaged property freed from the encumbrance of the lien imposed by the older judgment. Brunswick Sav. & Trust Co. v. National Bank, 102 Ga. 766, 29 S.E. 688 (1898). Sale of equity of redemption. - The equity of redemption in mortgaged property in this state is subject to levy and sale. Winter v. Garrard, 7 Ga. 183, 1849 Ga. LEXIS 120 (1849); Harwell v. Fitts, 20 Ga. 723, 1856 Ga. LEXIS 138 (1856); Tarver v. Ellison, 57 Ga. 54, 1876 Ga. LEXIS 19 (1876); Sims v. Jones, 158 Ga. 384, 123 S.E. 614, 1924 Ga. LEXIS 160 (1924). When the cost fi. fa. was levied upon land to the decedent in order to satisfy that fi. fa., only the equity of redemption could be sold. Johnson v. Goins, 157 Ga. 430, 121 S.E. 830, 1924 Ga. LEXIS 67 (1924). Tax sale. - Where property is sold under a tax fi. fa., upon which there is a preexisting mortgage, only the equity of redemption can be sold. Doane v. S.B. Chittenden & Co., 25 Ga. 103, 1858 Ga. LEXIS 24 (1858); Johnson v. Goins, 157 Ga. 430, 121 S.E. 830, 1924 Ga. LEXIS 67 (1924). Sale under junior general judgment. - Where it is undisputed that before and at the time of sale of property the attorney for the mortgagee gave all prospective and actual bidders upon the property, which was being sold under a junior general judgment, public notice that the property was being sold subject to the lien of a senior mortgage fi. fa. which the mortgagee held, the purchaser at the sale acquired only the equity of redemption held by the defendant in the junior fi. fa. Garrett v. Fields, 22 Ga. App. 381, 95

S.E. 1014, 1918 Ga. App. LEXIS 349 (1918). Effect of sale of unrecorded senior mortgage. - If a senior unrecorded mortgage is foreclosed, and the mortgagees become the purchasers at the sale thereunder, they obtained only the equity of redemption under a junior recorded mortgage, and the holder of such junior mortgage could thereafter foreclose it and subject the property to levy and sale thereunder; the junior mortgagee is not compelled to look to the proceeds of the sale under the senior mortgage fi. fa. Kelly

& Bros. v. Shepherd, 79 Ga. 706, 4 S.E. 880, 1888 Ga. LEXIS 34 (1888). Equitable pleadings to foreclose as amendment to claim. - The claimant of property levied on under a judgment cannot, by equitable pleading offered as an amendment to the claim, foreclose a mortgage against the defendant in execution and thereupon obtain a decree for the satisfaction of such mortgage out of the proceeds of the property when sold under O.C.G.A. § 44-14-44. Cabot v. Armstrong, 100 Ga. 438, 28 S.E. 123, 1897 Ga. LEXIS 80 (1897).

RESEARCH REFERENCES Am. Jur. 2d. 55 Am. Jur. 2d, Mortgages, § 778. C.J.S. 59 C.J.S., Mortgages, § 457. ALR. Right of chattel mortgagee in respect of proceeds of sale of mortgaged property by mortgagor, 36 A.L.R. 1379. Liability of grantee assuming mortgage debt, to grantor, 76 A.L.R. 1191; 97 A.L.R. 1076. Chattel mortgagee’s consent to sale of mortgaged property as waiver of lien, 97 A.L.R. 646. 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. Sale in inverse order of alienation, 131 A.L.R. 4. Right of true owner to recover proceeds of sale or lease of real property made by another in the belief that he was the owner of the property, 133 A.L.R. 1443. Right to attack voidable sale under power in mortgage, as personal to mortgagor (or owner of equity of redemption), or as exercisable by his heir, grantee, creditor, or other person claiming under or through him, 143 A.L.R. 528. Extent of exemption of proceeds of voluntary sale of homestead as affected by lien or encumbrance, 161 A.L.R. 1256.