Rival v. Gallagher

McCay, Judge. The judgment in the claim case that the land sold under the mortgage fi. fa. was subject to it as against Raoult and his tenants, was conclusive that they had nothing in it superior to the title obtained by Mr. Gallagher at the sheriff’s sale. It has always been the rule in Georgia that whilst a claimant is not obliged to claim, yet if he does do so, and the land be found subject, he cannot afterwards insist on his title; [632] the judgment is an estoppel upon him. Unless this be so, the whole proceedings in the claim case are nugatory. The purchaser stands as a privy to the plaintiff in execution, and has bought his rights. The present plaintiff is a tenant of Guerin, and must take his fate. His possession is that of Guerin. The facts show that both of them held avowedly subject to this mortgage. This case does not, therefore, bring up the point insisted on in the argument, though we incline to think that as a purchaser from the mortgagor with notice buys only the equity of redemption, and has a right to redeem, that he •stands in the mortgagor’s shoes, and cannot resist the right of the purchaser to be put in possession any more than could the mortgagor. The case in 45 Georgia, 203, stands on a different footing. The right of plaintiff who has got a judgment on an appeal to go upon property sold by the defendant after the first judgment, is peculiar. The statute, in terms, declares that the property shall not be bound by the first judgment, except that the defendant cannot alienate it. The sale is under the second judgment. That, for certain purposes, it will operate so as to treat land sold by the defendant since the first judgment as still his, even in the hands of a purchaser for value without notice, does not alter the fact that it is sold under the second judgment. Besides, the judgment of foreclosure is not a judgment against the defendant. It is a quasi proceeding in rem. to assert against the mortgagor, and all claiming under him subsequent to the record, or having actual notice, the lien of the mortgage on the land. Judgment affirmed.