Burgwyn Bros. Tobacco Co. v. Bentley & Co.

Lumpkin, Justice. The facts, other than those herein mentioned, which may be necessary to a full understanding of the rulings made by this court in this case, will be stated by the reporter. 1. When it is incumbent upon a party other than the mortgagee to prove that he owns a mortgage, he should show a written transfer of it to himself; but this is certainly not necessai’y in a particular case when it is alleged in the pleadings of the opposite party that the mortgage has been transferred to him. 2. They?, fa. which Lewis introduced over the plaintiffs’ objection was not properly issued and was not a regular process, there being a serious variance between it and the affidavit of foreclosure. Receiving it in evidence, however, even if erroneous, did no harm, it being manifest that neither its presence nor its absence could or should have affected the mind of the judge in reaching his conclusion upon the matters before him for determination. Besides, this ft fa. is amendable. The affidavit made by Lewis, alleging himself to be the owner and holder of the mortgage thereto annexed, and [517] stating the amounts due thereon, complies with the requirements of section 8971 of the code. It would have been more accurate to allege distinctly that these amounts were due to Lewis upon a mortgage made to the Atlanta Talc Manufacturing Company, owned by deponent but not transferred to him in writing, and an amendment of the affidavit to this effect would have been proper, though not absolutely necessary, because, construed in connection with the mortgage, the meaning of the affidavit is sufficiently clear. Accordingly, the fi. fa. should have been issued in the name of the company for the use of Lewis,, and this may yet be accomplished by amendment. See Nicholson & Co. v. Whaley, decided at the last term. 90 Ga. 257. In that case an affidavit to foreclose a mortgage on personalty, made by one member of a firm, alleged that the mortgagor was indebted to such firm the amounts due on the mortgage as holders and owners thereof, they not being, however, the mortgagees therein named. This affidavit, like the one made by Lewis in the present case, was really sufficient; but the plaintiffs having asked leave to amend their “proceedings to foreclose” (which, of course, included the affidavit) so as to have them in the name of the mortgagee for the plaintiffs’ use, the amendment ought to have 'been allowed. It was their right, if they so desired, to have their pleadings complete and perfect in all respects, and we held in the case just mentioned that a denial of this right was erroneous. The mortgage fi. fa. was not set out in the record of that case, but presumably it followed the affidavit and was issued in favor of affiant’s firm. If so, it needed amendment, and our ruling that the proceedings to foreclose were amendable by inserting as party plaintiff the name of the mortgagee for the use of the owner, was broad enough-to allow the necessary amendment to the fi. fa. When the irregularity in the [518] fi.fa. belonging to Lewis has been corrected by pi’oper amendment, its right to proceed or participate in the fund realized' from a sale of the mortgaged property will be governed by what is said in the fourth headnote. 8. A diligent creditor should not be needlessly interfered with in the prosecution of his legal remedies. The fact that a creditor by mortgage has other security, from Avhich he may collect an amount sufficient to satisfy only a part of his claim, certainly should not delay him in proceeding with the mortgage, especially when it plainly appears that unsecured creditors will obtain the benefit of the additional security, after the mortgage is satisfied. This will result from the order made by the judge in this case. While the petition alleges that the collaterals held by J. H. & Á. L. James and the Atlanta Talc Manufacturing Company were amply sufficient to secure them fully, the proof shows they could realize upon these securities only a portion of the amounts due on their mortgages, and the order, in effect, provides that all the assets of Bentley & Co. shall go to the receiver after the mortgages are paid. Consequently, no reason whatever appears, so far as these collaterals are concerned, why the collection of the mortgages should have been arrested by the appointment of a receiver. 4. A mortgage creditor has no right to collect usurious interest from an insolvent debtor to the prejudice of other creditors. The debtor could pay such interest, if he chose, and a creditor receive it, if no others were concerned or to be affected; but where a failing debtor cannot pay all he owes, any creditor is fortunate enough A\dio receives back his own with lawful interest. This accords Avith the rulings of this court in Brooks v. Todd, 79 Ga. 692, and Weihl, Probasco & Co. v. Atlanta Furniture Manufacturing Co. et al., decided at the last term, [519] 89 Ga. 297, and seems to have a foundation in justice and fair dealing. We therefore think our ruling set forth in the fourth head-note makes a proper and lawful disposition of the case. Judgment affirmed, with directions.