GA Code § 44-14-49 (2021)
2021 Georgia Code|Title 44 - Property|Chapter 14 - Mortgages, Conveyances to Secure Debt, and Liens|Article 2 - Mortgages|§ 44-14-49. Right of Holder of Mortgage to Foreclose in Equity

 The holder of any mortgage of real or personal property or both, whether as original mortgagee or as executor, administrator, or assignee of the original mortgagee, may foreclose the mortgage in equity according to the practice of the courts in equitable proceedings as well as by the methods prescribed in this chapter.   (Ga. L. 1880-81, p. 127, § 1; Code 1882, § 3979a; Civil Code 1895, § 2770; Civil Code 1910, § 3305; Code 1933, § 67-601.)   Law reviews.   - For note discussing enforcement of security agreements in equity in light of Article 9, Part 5 of the Uniform Commercial Code, see 3 Ga. L. Rev. 198 (1968).   JUDICIAL DECISIONS   History of equitable foreclosures.    - Formerly the process of foreclosure of a mortgage in England was by bill in chancery. Bailey v. Lumpkin, 1 Ga. 392 (1846); Mahone v. Elliott, 141 Ga. 214, 80 S.E. 713 (1914).    Holders of mortgages may now resort to equity for their foreclosure, without alleging any special grounds of equitable interference. DeLay v. Latimer, 155 Ga. 463, 117 S.E. 446 (1923).   Courts have fuller power by this section.    - O.C.G.A. § 44-14-49 allowing mortgages to be foreclosed in equity conferred fuller powers upon the court by this mode of procedure than it had at law; and in addition to the foreclosure, a personal decree may be rendered against the mortgagor. Clay v. Banks, 71 Ga. 363 (1883).   Where foreclosure already had at law.    - Where the creditor has an honest mortgage on personalty, and has foreclosed the same at law, the creditor has no occasion, either as a substitute for, or in aid of the foreclosure proceeding, to file a bill in a court of equity under O.C.G.A. § 44-14-49 in order to realize the fruits of the foreclosure as against fraudulent mortgages of prior date on the same property, which are also foreclosed, and under which the property has been seized and is about to be sold. Manheim v. Claflin & Co., 81 Ga. 129, 7 S.E. 284 (1888).   Foreclosure in connection with contempt action not authorized.    - Contempt proceeding against former husband to enforce the terms of a divorce decree granting former wife an equitable lien on property conveyed to husband was merely ancillary to the divorce action and the court was not authorized to permit foreclosure upon the property. Harris v. U.S. Dev. Corp., 269 Ga. 659, 502 S.E.2d 721 (1998).   Court of Appeals denied jurisdiction.    - Since an action to enforce an equitable foreclosure is in equity, 1983 Const., Art. VI, Sec. VI, Para. III operates to deny jurisdiction of the Court of Appeals to hear a case arising under O.C.G.A. § 44-14-49. Arnold v. Hickey, 169 Ga. App. 750, 315 S.E.2d 273 (1984).   Personal judgment against debtor becoming barred.    - Under O.C.G.A. § 44-14-49 the fact that a personal judgment against the debtor had become barred did not render dormant that part of the decree which declared that the creditor held a valid legal title to the policy to the extent specified. Conway v. Caswell, 121 Ga. 254, 48 S.E. 956, 2 Ann. Cas. 269 (1904).   Payment to purchaser from mortgagor before foreclosure.    - Where A, the owner of land, borrows money from B and gives a security deed, taking a bond for titles, and subsequently mortgages the land to C to secure the payment of money borrowed, and then sells and transfers the bond for titles to D, who has notice of the mortgage, and D pays off the claims of B, C cannot in equity foreclose the mortgage on the land and have it sold without first paying or tendering to D the amount paid by the latter to B. Crawford v. Maddox, 117 Ga. 135, 43 S.E. 421 (1903).   County of foreclosure of mortgage on realty.    - A mortgage on land cannot be foreclosed in a county other than where the land lies under a legal proceeding, but it might be otherwise if the foreclosure were sought in equity under O.C.G.A. § 44-14-49. Allen v. Glenn, 87 Ga. 414, 13 S.E. 565 (1891).   Action for damages for breach of bond with a prayer of foreclosure.    - An action of an equitable nature under O.C.G.A. § 44-14-49 by a building and loan association for damages resulting from the breach of a bond given to it by a member to whom it had made an advance upon the member's stock, with a prayer for the foreclosure of a mortgage which the member had executed to secure the payment of such damages, was well brought. Morgan v. Interstate Bldg. & Loan Ass'n, 108 Ga. 185, 33 S.E. 964 (1899).   Failure to issue execution on judgment.    - Where upon a petition to foreclose a mortgage in equity under O.C.G.A. § 44-14-49 a judgment was rendered foreclosing the mortgage, while, so far as the same may purport to be a general personal judgment, it is dormant because of failure to issue an execution thereon in terms of the statute relating to dormancy of judgments, it is valid and enforceable as a decree foreclosing a mortgage. Conway v. Caswell, 121 Ga. 254, 48 S.E. 956, 2 Ann. Cas. 269 (1904); Lindsey v. Porter & Garrett, 140 Ga. 249, 78 S.E. 848 (1913).    Holder of one of several notes secured by same mortgage may foreclose the mortgage in equity. The holder of the other notes is a proper, even if not a necessary, party to the proceeding. Willingham & Cone v. Huguenin, 129 Ga. 835, 60 S.E. 186 (1908).    Sufficiency of petition. Ford v. Tifton Guano Co., 144 Ga. 353, 87 S.E. 274 (1915).    Cited in Duke v. Culpepper, 72 Ga. 842 (1884); Carling v. Seymour Lumber Co., 113 F. 483 (5th Cir. 1902); Smith v. First Nat'l Bank, 143 Ga. 543, 85 S.E. 696 (1915); Thompson v. Graham, 172 Ga. 35, 157 S.E. 204 (1931); Penn Mut. Life Ins. Co. v. Troup, 177 Ga. 456, 170 S.E. 359 (1933); Coolidge v. Sandwich, 49 Ga. App. 564, 176 S.E. 525 (1934); Candler v. Bryan, 189 Ga. 851, 8 S.E.2d 81 (1940); Gillespie v. Williams, 78 Ga. App. 503, 51 S.E.2d 608 (1949).   RESEARCH REFERENCES   Am. Jur. 2d.   - 55 Am. Jur. 2d, Mortgages, § 633 et seq.   C.J.S.   - 59 C.J.S., Mortgages, § 490 et seq.   ALR.    - Personal representatives, or nonlien creditors, of deceased mortgagor or of deceased grantee of premises subject to mortgage (with or without assumption of mortgage debt), as necessary or proper parties to foreclosure suit, 124 A.L.R. 784.    Remedy of mortgagee in forged or unauthorized mortgage where proceeds are used to discharge valid lien, 151 A.L.R. 407.    Right, after foreclosure, to reformation on ground of erroneous description originating in mortgage, 172 A.L.R. 655.