Mortgages on real estate may be foreclosed in the following manner:
(Laws 1829, Cobb's 1851 Digest, pp. 570, 572; Laws 1836, Cobb's 1851 Digest, p. 572; Code 1863, § 3866; Code 1868, § 3886; Code 1873, § 3962; Ga. L. 1878-79, p. 50, § 1; Code 1882, § 3962; Civil Code 1895, § 2743; Civil Code 1910, § 3276; Ga. L. 1920, p. 78, § 1; Code 1933, § 67-201.)
Law reviews.- For note discussing problems with venue in Georgia, and proposing statutory revisions to improve the resolution of venue questions, see 9 Ga. St. B.J. 254 (1972).
JUDICIAL DECISIONSANALYSIS
Foreclosure consequences of power to mortgage. Adams v. Mayor of Rome, 59 Ga. 765 (1877).
Proceeding statutory.
- The proceeding to foreclose under O.C.G.A. § 44-14-180 was statutory, and not an equitable action. Smith v. First Nat'l Bank, 143 Ga. 543, 85 S.E. 696 (1915).
Locus of land gives jurisdiction.
- Under O.C.G.A. § 44-14-180 the locus of the land gives jurisdiction, and the only judgment the court can pass is that the lands shall be sold to satisfy the debt. No other property can be levied on. DeGive v. Lewis, 52 Ga. 588 (1874).
Where judgment is granted in the county of the mortgagor's residence, which is not where the land is situated, the claimant of the land under a mortgage fi. fa. may raise the objection on the trial of the claim. Hackenhull v. Westbrook, 53 Ga. 285 (1874).
Venue of attorney's liens.
- A proceeding to foreclose an attorney's lien upon real property is to be brought as is a proceeding to foreclose a mortgage upon property of like kind; and hence the venue of such a proceeding is the county wherein the land lies as provided for in O.C.G.A. § 44-14-180. McCalla v. Nichols, 102 Ga. 28, 28 S.E. 988 (1897).
The action fails, where there is a total absence of a rule nisi in a mortgage foreclosure, and the mere filing of the petition will not suffice to authorize the action to be treated as commenced and pending. York v. Edwards, 52 Ga. App. 388, 183 S.E. 339 (1936).
Effect of waiver of statutory requirements.
- Waivers by the defendant of statutory requirements, of O.C.G.A. §§ 44-14-180 and44-14-181, and consents that the rules nisi and absolute may be issued and the mortgage finally foreclosed at the first term, do not bind third persons, nor confer such jurisdiction on the court as will authorize it to render a final judgment of foreclosure at the first term. As to third persons such a judgment is void. Smith v. First Nat'l Bank, 143 Ga. 543, 85 S.E. 696 (1915).
A petition, under O.C.G.A. § 44-14-180 is a pleading and may be amended as a pleading. Ledbetter v. McWilliams, 90 Ga. 43, 15 S.E. 634 (1892).
Foreclosure as action within statute of limitations. George v. Gardner, 49 Ga. 441 (1873).
In seeking to foreclose a mortgage which on its face appears to be barred by the statute of limitations, where the desire is to avoid the bar by reason of a new promise of partial payment, such relieving facts must be alleged with sufficient certainty under O.C.G.A. § 44-14-180 to enable the defendant to meet the same by plea as well as proof. Jesup v. Epping, 66 Ga. 334 (1881).
Proceedings were not barred by the limitations statute. York v. Edwards, 52 Ga. App. 388, 183 S.E. 339 (1936).
Pendency of proceedings no hindrance to other actions.
- The pendency of proceedings to foreclose a mortgage under O.C.G.A. § 44-14-180, is no hindrance to a regular action upon the notes to secure which the mortgage was given. Juchter v. Boehm, Bendheim & Co., 63 Ga. 71 (1879).
Lack of title in mortgagor.
- Where the mortgagor of land has no title to it, but only a bargain for it, with part payment of the purchase money, the mortgagee cannot have the aid of a court of equity to foreclose the mortgage as against the holder of the title, without offering to pay the remainder of the purchase money. Crummey v. Mechanics' & Sav. Bank, 30 Ga. 670 (1860).
Debt not due at commencement of terms.
- Although, when the term commenced at which the rule nisi to foreclose was taken, the debt, to secure which the mortgage was given, was not due, yet if, when the petition and rule nisi were represented, the debt had matured and the rule nisi was served on the defendant more than three months (now 30 days) before the next term, at which the money due on the mortgage was required to be paid; this is all that the mortgagee was entitled to under O.C.G.A. § 44-14-180. Hart v. Altmeyer & Co., 74 Ga. 367 (1884).
The evidence in a claim case pending a fi. fa. on a mortgage was sufficient to show that a rule nisi and a rule absolute were granted. Redding v. Anderson, 144 Ga. 100, 86 S.E. 241 (1915).
No appeal lies from a rule absolute awarded by the court for the foreclosure of a mortgage. Clifton v. Livor, 24 Ga. 91 (1858).
For discussion of the effect on O.C.G.A. § 44-14-180 of certain laws not directly amending that section, see Swift v. Van Dyke, 98 Ga. 725, 26 S.E. 59 (1896).
Cited in Allen v. Glenn, 87 Ga. 414, 13 S.E. 565 (1891); Michelson v. Cunningham, 96 Ga. 601, 24 S.E. 144 (1895); Lankford v. Peterson, 20 Ga. App. 147, 92 S.E. 764 (1917); Green v. Spires, 189 Ga. 719, 7 S.E.2d 246 (1940); Banks v. Employees Loan & Thrift Corp., 112 Ga. App. 38, 143 S.E.2d 787 (1965); Walker v. Small Equip. Co., 114 Ga. App. 603, 152 S.E.2d 629 (1966); Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975); Wright v. Barnett Mtg. Co., 226 Ga. App. 94, 485 S.E.2d 583 (1997).
Service
Process compared.
- While the rule nisi signed by the judge differs from the process issued by the clerk in ordinary cases, in that there must be personal service or service by publication, and the leaving of a copy at the defendant's residence is not sufficient, as well as differing in other respects, it is nevertheless in many respects analogous to regular process. York v. Edwards, 52 Ga. App. 388, 183 S.E. 339 (1936).
Rule is only process.
- In a statutory proceeding to foreclose a mortgage on realty, the only "process" that is necessary is the rule nisi prescribed by O.C.G.A. § 44-14-180, and the only prayer for process that is necessary is a prayer for such a rule. Smith v. Downing Co., 21 Ga. App. 741, 95 S.E. 19 (1896). See also Montgomery v. King, 123 Ga. 14, 50 S.E. 963 (1905).
Service by publications.
- Where the plaintiff seeks a judgment in rem, and not a judgment in personam, service by publication, in accordance with the terms of O.C.G.A. § 44-14-180, is no less effective than personal service. Smith v. Downing Co., 21 Ga. App. 741, 95 S.E. 19 (1918).
Leaving a copy at defendant's residence.
- In cases of foreclosure of mortgages, the service must be personal, or by publication under O.C.G.A. § 44-14-180. Service by leaving a copy at the residence of the defendant is not sufficient. Dykes v. McClung, 74 Ga. 382 (1884); Hobby v. Bunch, 83 Ga. 1, 10 S.E. 113, 20 Am. St. R. 301 (1899); Southern State Phosphate & Fertilizer Co. v. Clark, 149 Ga. 647, 101 S.E. 536 (1919).
If the only service of the rule nisi to foreclose the mortgage under O.C.G.A. § 44-14-180, was by leaving copy at the most notorious place of abode of the defendant, and there was no personal service, this furnished a good ground of defense to the foreclosure. Meeks v. Johnson, 75 Ga. 629 (1885).
The service of the rule on a trustee to foreclose mortgage on land, is sufficient under O.C.G.A. § 44-14-180; and the cestui que trust need not be made a party. Wood v. Nisbet, 20 Ga. 72 (1856).
Service by an unofficial person is not legal under O.C.G.A. § 44-14-180. Falvey v. Jones, 80 Ga. 130, 4 S.E. 264 (1887); Hobby v. Bunch, 83 Ga. 1, 10 S.E. 113, 20 Am. St. R. 301 (1899); Montgomery v. King, 123 Ga. 14, 50 S.E. 963 (1905); Southern States Phosphate & Fertilizer Co. v. Clark, 19 Ga. App. 376, 91 S.E. 573 (1917); Southern States Phosphate & Fertilizer Co. v. Clark, 149 Ga. 647, 101 S.E. 536 (1919).
Where the entry of service is signed by one assuming to act as deputy sheriff, and an affidavit of illegality is interposed alleging that such person is not in fact a deputy sheriff, if both the sheriff and the person acting as deputy sheriff are not made parties to the traverse, there is no such attack upon the return as would justify a judgment setting it aside, and on motion such a ground of illegality should be dismissed. Southern States Phosphate & Fertilizer Co. v. Clark, 19 Ga. App. 376, 91 S.E. 573 (1917).
Day of serving rule counted.
- The day on which the rule nisi to foreclose a mortgage on land was served should be counted. English v. Ozburn, 59 Ga. 392 (1877).
The return day in case of a foreclosure of a mortgage on real estate, under O.C.G.A. § 44-14-180, was the day to which the rule nisi was returnable. Swint v. Milner Banking Co., 30 Ga. App. 733, 119 S.E. 336 (1923).
Late service returnable to next term.
- Where a rule nisi upon a petition to foreclose was issued more than three months (now 30 days) before the next term of court, at which term the mortgagor was required to pay the money into court, and personal service of the rule nisi was effected prior to the term at which the payment was required to be made, but too late to be due service to that term, it would go over and become returnable to the next succeeding term. Vaughan v. F & M Bank, 145 Ga. 338, 89 S.E. 195 (1916).
Where quarterly terms of the superior court in a particular county are provided for by law, and, a rule nisi on a petition to foreclose a mortgage on realty is granted at one term under O.C.G.A. § 44-14-180, and the first day of the next regular succeeding term will occur within less than three months (now 30 days) after the grant of the rule nisi, it should be made returnable to the first term thereafter for which lawful service can be had, or the next term but one. Southern States Phosphate & Fertilizer Co. v. Clark, 19 Ga. App. 376, 91 S.E. 573 (1917).
As in the case of ordinary process served an insufficient length of time before the appearance term, which O.C.G.A. § 44-14-180 makes good for the next succeeding term, a rule nisi issued upon a petition to foreclose a mortgage upon realty, service of which is made prior to the term at which the mortgagee is directed to pay the money into court, but too late to be due service for that term, goes over, and becomes returnable to the next succeeding term. York v. Edwards, 52 Ga. App. 388, 183 S.E. 339 (1936).
Effect of defective service.
- Where service of a rule nisi was acknowledged by the mortgagors four days before the rule absolute was granted by the court, and the judgment absolute recited that the mortgagors named had "acknowledged service on this rule nisi," such defective service did not render the judgment absolute void, but voidable. Milltown Lumber Co. v. Blitch, 146 Ga. 253, 91 S.E. 62 (1916).
In the service of a rule nisi issued by the judge in proceedings to foreclose an attorney's lien on land, analogous to a rule nisi in mortgage foreclosure proceedings, the service of an ordinary copy instead of a certified copy of the rule nisi, especially when in effect so provided in the rule nisi, does not render the service and proceedings void. York v. Edwards, 52 Ga. App. 388, 183 S.E. 339 (1936).
A recital of service under O.C.G.A. § 44-14-180, if silent as to the mode of service, is to be read in connection with the sheriff's return. Hobby v. Bunch, 83 Ga. 1, 10 S.E. 113, 20 Am. St. R. 301 (1899).
Correction of irregularities.
- Where valid process has been issued with an action setting out a cause of action, and there has been no sufficient service through no fault or laches of the plaintiff or plaintiff's attorney, the judge may by order provide for the correction of any mere irregularity in the process or service; and after the perfection of service, even though subsequent to the return term, such service will relate to the date of the filing of the petition, which will be treated as the time of commencement of the action. York v. Edwards, 52 Ga. App. 388, 183 S.E. 339 (1936).
Right of creditor of mortgagor to show improper service.
- Where service was regularly returned as made upon a special agent of the mortgagor, a creditor of the mortgagor could not dispute the legality of the service by showing that the person served was not in fact a special agent, it not appearing that the mortgagor had repudiated the service. Flannery & Co. v. Baldwin Fertilizer Co., 94 Ga. 696, 21 S.E. 587 (1894).
Attorneys' liens.
- A proceeding to foreclose an attorney's lien upon real property is to be brought as is a proceeding to foreclose a mortgage upon land; the process is a rule nisi issued by the court, and not a process issued by the clerk as in ordinary cases. Moss v. Strickland, 138 Ga. 539, 75 S.E. 622 (1912); York v. Edwards, 52 Ga. App. 388, 183 S.E. 339 (1936).
Time of rendering judgment on attorney's lien.
- When a petition for foreclosure of an attorney's lien was filed in the superior court during a regular term thereof, under O.C.G.A. § 44-14-180, and thereafter the defendant acknowledged due and legal service of such proceedings, the court had jurisdiction to render a judgment of foreclosure at its next succeeding term. Ray v. Hixon, 107 Ga. 768, 33 S.E. 692 (1899).