Wilder Bros. v. Montgomery

Sutton, J. 1. A mortgagor may interpose to the foreclosure of a chattel mortgage any defense which he could make in an ordinary suit on the demand secured by the mortgage. Civil Code (1910), §§ 3289, 3300 (Code of 1933, §§ 67-1004, 801). 2. After the plaintiff had instituted proceedings to foreclose a chattel mortgage on certain live stock to secure a debt of $500 due by the defendants to him, he met with them at the office of his attorney, and there a valuation of $100 was placed upon the live stock levied on under the mortgage fi. fa., and the plaintiff agreed with the defendants that if they would pay to him, through his attorney, $100, he would release the live stock from the lien of the mortgage fi. fa. and would credit the mortgage with that sum. There was no question about the validity of the mortgage debt. There was no suggestion of the insolvency of the defendants. Thereupon the defendants procured this money, and when they offered it to the plaintiff’s attorney he refused it, stating that the plaintiff had backed out of the agreement. The plaintiff proceeded with the foreclosure proceedings, and defendants interposed their affidavit of illegality, in which they set up the foregoing facts as a defense. The judge sustained the plaintiff’s demurrer on the ground that no defense was alleged. The exception is to this judgment. This executory agreement was without consideration, and was not binding upon the parties. It was no bar to proceeding with the mortgage foreclosure. The judge did not err in dismissing the affidavit of illegality. See Civil Code (1910), §§ 4326-4329 (Code of 1933, §§ 20-1201 et seq.); Hewlett v. Almond, 29 Ga. App. 392 (115 S. E. 501); Molyneaux v. Collier, 13 Ga. 406; Stovall v. Hairston, 55 Ga. 9, 10; Brunswick &c. Ry. Co. v. Clem, 80 Ga. 534 (7 S. E. 84); Blalock v. Jackson, 94 Ga. 469 (20 S. E. 346); Long v. Scanlon, 105 Ga. 424, 427 (31 S. E. 436). Judgment affirmed. Jenkins, P. J., and Stephens, J., concur.