Cromley v. Motor Liens Inc.

Gilbert, J. 1. “The holder of a junior mortgage is equitably entitled, when necessary to his protection, to make a tender to a prior mortgagee, who is proceeding to enforce his mortgage, of the principal, interest, and all costs due thereon, and demand a transfer thereof. In other words the junior mortgagee has a right to redeem in order to protect his interests.” Tillman v. Stewart, 104 Ga. 687, 689 (30 S. E. 949, 69 Am. St. R. 192). 2. The above-stated principle is not applicable unless the junior mortgagee shows that such an assignment is necessary to his protection. 3. Under the pleadings and the evidence, the trial judge was authorized to find that the payment of the senior mortgage by the junior mortgagees and the transfer to the latter of the lien of the former was necessary to the protection of said- junior mortgagees, because the land was about to be sold under a power of sale, and not at a judicial sale by the sheriff. In these circumstances the junior mortgagees did not have an adequate remedy at law by claiming the excess of the proceeds of the sale, as in judicial sales. In the present case, where the holder of the senior mortgage would sell under a power of sale, the purchase-price would come into his hands instead of into the hands of the sheriff, and this would necessitate a resort to equity at last by the junior mortgagees in order to protect themselves and obtain full relief by an adequate remedy. Mortgages, 27 Oyc. p. 1811, n. 3. Subrogation, 37 Cyc. p. 459, n. 11; p. 461, n. 22. Judgment affirmed- All the Justices concur. Hinton Booth, for plaintiff in error. (?. 8. Johnston and Leivis A. Mills, contra.