DeLay v. Latimer

Hines, J. (After stating the foregoing facts.) The claimant moved to dismiss the levy, on the ground that the judgment upon which the execution issued was void for lack of service upon the defendant against whom it was rendered. The suit in which the mortgage was foreclosed was one by petition and process. This suit was returnable to the July term, 1919, of Fulton superior court. Under an order passed May 3, 1919, service on the mortgagor defendant was made by publication twice for two months in the newspaper in which the sheriff’s advertisements were printed. On July 8, 1919, an order was taken, reciting that the provisions of law and the order of the court with respect to service on the mortgagor had been complied with, and decreeing that service had been perfected upon said defendant. On the latter date the clerk made an entry upon the petition, in which he certified that he had that day mailed a copy of the newspaper in which the notice to perfect service was published, with said notice plainly marked, to said defendant at Charleston, S. C. The foreclosure suit was tried on May 19, 1920, during the May term, 1920, of Fulton superior court, when a verdict was [468] returned in favor of the plaintiff against the defendant for the principal and interest due on said mortgage. The verdict declared that said sums of principal and interest were a special lien upon the property upon which the mortgage was foreclosed. Judgment was rendered in favor of the plaintiff upon the verdict. Was the service upon the defendant mortgagor sufficient? .Service on the defendant was in substantial compliance with the provisions of our law for service by publication. Civil Code (1910), §§ 5556, 5557, 5558. The point seems to be made that the plaintiff did not “ file in the office of the clerk, at least thirty days before the term next after the order for publication, a copy of the newspaper in which ” the notice to perfect service was published, as required by section 5557 of the Civil Code. This is only required where the residence of the non-resident party is known, and it was alleged in the petition that his residence was unknown to the plaintiff. It does not appear, and is not alleged, that the plaintiff knew of the residence of the non-resident defendant prior to the term next after the order for the publication of service was taken. It does appear from the certificate of the clerk that a copy of the newspaper containing the published notice to the defendant of the pendency of the suit was mailed to him at Charleston, S. C., on July 8, 1919, which was the second day of the term next after the order for publication of service. It is to be presumed that the residence of the defendant then became known to the plaintiff, and that this resulted in the mailing of said notice to him. It will further be presumed, in favor of the validity of the order of the court declaring service perfected, that this order was taken after said notice had been mailed to the defendant.” After the proper time for the making of such publication has elapsed, and the clerk has made the proper entry in regard to mailing a copy of the publication to the non-resident defendant, and an order has been taken declaring that the service has been properly perfected, it can not be disregarded and treated as a mere nullity on a motion to dismiss” the levy of the execution issued on the foreclosure judgment. It is not necessary for the court by formal order to direct the amendment of the process as to the non-resident defendant, or to order new process to be attached, returnable to a later term of the court. Langston v. Langston, 141 Ga. 675 (82 S. E. 36); Schulze v. Schulze, 149 Ga. 532 [469] (101 S. E. 183). So service by publication and by mailing of tbe required notice was good. The judgment of foreclosure was not void for lack of service, especially as it was not rendered until the fifth term after the notice of the pendency of the suit was mailed to the defendant. It follows that the court did not err in overruling the motion to dismiss the levy on the ground that the judgment was void for lack of valid service., Claimant also moved to dismiss the levy because the order adjudging service by publication perfected was not taken and signed by the judge at the time required by the statute. This order can be taken at any stage of the proceeding, " after the proper time for the making of such publication has elapsed, and the clerk has made the proper entry in regard to mailing a copy of the publication to the non-resident defendant,” in cases where the latter requirement is necessary. Langston v. Langston, supra. So the court did not err in refusing to dismiss the levy on this ground. One of the grounds of the claimant’s motion to dismiss the levy was that the foreclosure suit was commenced by petition and process in which petition no grounds for equitable relief were alleged, and that for this reason the mortgage should have been foreclosed under our statutory provision for mortgage foreclosure. The contention is that the statutory proceeding for the foreclosure of mortgages furnishes a.full and complete remedy; and that thus equity is ousted of its jurisdiction in this matter, unless a special case is made by the bill. Osborn v. Ordinary, 17 Ga. 123 (63 Am. D. 230). This case was decided before the act of 1880, now embodied in the Civil Code (1910), § 3305, which declares that "the holder of any mortgage . . shall be at liberty to foreclose such mortgage in equity according to the practice of courts in equitable proceedings, as well as by the methods prescribed in the Code.” Formerly the process- of foreclosure df a mortgage in England was by bill in chancery. Bailey v. Lumpkin, 1 Ga. 392; Mahone v. Elliott, 141 Ga. 214 (80 S. E. 713). This was a well-defined branch of equity jurisprudence. It was taken from our superior courts by the adoption of the statutory method of foreclosing mortgages in cases where no special equitable relief was prayed. The effect of the act of 1880 was to open the door of equity again to parties wishing to foreclose mortgages. The [470] holders of mortgages may jiow resort to equity for their foreclosure, without alleging any special 'grounds of equitable interference. However, in the present case special reasons were set up for resort to equity. The plaintiff prayed for a personal judgment against the mortgagor. Clay v. Banks, 71 Ga. 363. It may be that this fact would not furnish any special ground for equitable relief in a case where the plaintiff alleged that the mortgagor was a non-resident on whom personal service could not be effected, for which reason no personal judgment could be rendered against him. But it was further alleged that the property embraced in the mortgage had afterwards been set apart as a homestead for the benefit of the mortgagor’s family, that on proper proceeding to which the mortgagee was a party the judge of the superior court had ordered a sale of the mortgaged property and the lien of the mortgage to be divested and fastened on the land in which the proceeds of the mortgaged property were invested under said order for sale; and plaintiff prayed for the foreclosure of the mortgage on the substituted property. This made a special ground for the grant of equitable relief. For these reasons the court did not err in overruling the motion to dismiss the levy on this ground. The claimant offered evidence to show that the notes, containing waivers of homestead and secured by this mortgage, were tainted with usury. The purpose of this evidence was to show that the waivers of homestead were void, and that the homestead was good against the mortgage, notwithstanding such waivers. The court did not err in rejecting this proof. It is true that a waiver of homestead embraced in promissory notes made prior to the act of 1916, and infected with usury, is void. Cleghorn v. Greeson, 77 Ga. 343; Prather v. Smith, 101 Ga. 283 (28 S. E. 857); Long v. Gresham, 148 Ga. 170 (96 S. E. 211). While usury in a debt will defeat a waiver of homestead made in a note which represents the debt, it is well settled that where such a note has been reduced to judgment, both the maker of the note and the beneficiaries of a homestead set apart after the execution of the note are estopped from setting up that the waiver of the homestead was void because of usury in the debt. Hightower v. Beall, 66 Ga. 102; Stewart v. Stisher, 83 Ga. 297 (9 S. E. 1041); McLaws v. Moore, 83 Ga. 177 (9 S. E. 615); Ezzard v. Estes, 95 Ga. 712 (22 S. E. 713); Johnson v. Davis, 97 Ga. 282 (22 S. E. [471] 911); Hendrix v. Webb, 113 Ga. 1028 (39 S. E. 461). This is true when the homestead was set apart on the application of the wife out of the husband’s property. Evans v. Piedmont &c. Asso., 117 Ga. 940 (44 S. E. 2). It is equally applicable to judgments based upon foreclosure of mortgages. Bank of Forsyth v. Gammage, 109 Ga. 220 (34 S. E. 307). In Winkles v. Simpson Grocery Co., 138 Ga. 482 (75 S. E, 640), a waiver of homestead was embraced in a firm note given by its manager. If anything therein ruled was contrary to what is held in this opinion, such ruling must yield to the older decisions upon this subject. Counsel for the claimant relies upon the case of Cleghorn v. Greeson, supra, but in that ease the judgment showed usury upon its face, McLaws v. Moore, supra. The decisions holding that the foreclosure of a mortgage to which a subsequent purchaser is not a party does not estop the latter from going behind the judgment of foreclosure and setting up certain defenses (Howard v. Gresham, 27 Ga. 347; Williams v. Terrell, 54 Ga. 462; Morris v. Winkles, 88 Ga. 717, 15 S. E. 747; Osborne v. Rice, 107 Ga. 281, 33 S. E. 54; Hinesley v. Stewart, 139 Ga. 7, 76 S. E. 385; Roberts v. Atlanta Cemetery Asso., 146 Ga. 490, 91 S. E. 675) are not applicable to the facts of this case. So we are of the opinion that the court did not err in rejecting such evidence, and in directing a verdict against the claimant. Judgment affirmed. All the Justices concur, except Bussell, C. J., dissenting. Hill, J., concurs in the result.