Rich v. Colquitt

Jackson, Justice. The question made in this case which must control it, is whether a mortgage on personal property must be fore [115] closed in the county of the residence of the mortgagor, if a resident of this state. 1. The mortgage of Rich could not claim the money unless it had been foreclosed, inasmuch as he had not complied with the statute and agreed that not only the equity of redemption but the entire property be sold, Code, §§3973-4,1967. Therefore, if not legally foreclosed and claiming the money as an execution, it had no stand ing in court; and if not foreclosed in the county of the mortgagor’s residence, it was not in legal contemplation foreclosed at all, and the ft. fa. was not in existence. It was ruled in 13th Ga., 285, that even the judge of the superior court could not issue the judgment of foreclosure on an affidavit made before him in a county other than the mortgagor’s residence, though in the circuit over which he presided; and in 54th Ga., 167, it was again ruled that “the foreclosure of the mortgage on personal property was not valid, because it was not alleged that the defendant resided in Baldwin county, where the mortgage was foreclosed, at the date of the foreclosure, or where he did reside.” So that the question is not open in this court. There is reason for the rule too. No notice is given of the foreclosure, and if the defendant lived in another county, the personalty might be sold under the mortgage ft. fa. before he knew a thing about it. If done in his county, he would be apt- to hear of it, and then have the opportunity to defend it. Besides, the constitution contemplates that every resident of the state be sued in his own county; and the non-resident alone may be sued where you can catch him in mortgage foreclosures of personalty as in other cases. Code, §3971 ; 45 Ga., 549; Sup. to Code, §651. 2. This point controls this case. It is unnecessary, therefore, to consider the other questions further than to say that another foreclosure would have had no effect so far as to claim this money, nor would an amendment have helped the plaintiff in error; because either an amend [116] ment of the affidavit, ora new start altogether, would have left him without a fi. fa. when the property was sold, and he could not claim the money which it brought under section 1967 of the Code, before cited. Judgment affirmed.