If the mortgagor or his special agent or attorney fails to set up a defense as provided in Code Section 44-14-184, it shall not be competent for any third person to interpose a defense and neither will the court itself, of its own motion, do so. However, one who purchases mortgaged property prior to the commencement of statutory proceedings to foreclose and who is not a party to the proceedings is not bound by the judgment of foreclosure and may, when the mortgage fi. fa. is levied, go behind the judgment and set up the defense that the mortgage could not be legally enforced against him whenever this is necessary and proper to establish the claim of title upon which he relies.
(Orig. Code 1863, § 3869; Code 1868, § 3889; Code 1873, § 3965; Code 1882, § 3965; Civil Code 1895, § 2747; Civil Code 1910, § 3280; Code 1933, § 67-302.)
RESEARCH REFERENCES
ALR.
- One taking assignment of mortgage in payment of or as collateral security for prior debt as a bona fide purchaser, 80 A.L.R. 395.
Judicial foreclosure of mortgage as affecting one who was not personally served within jurisdiction and did not appear, a 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.