do

Macon & Western R. R. Co. vs. Parker.

missioners' report, and protested against it and all the proceedings so far as they might affect his mortgage liens; that after the money was paid by Tyler, and under the advertisement for all creditors to come in and prove their debts, various creditors did So, but he declined and refused to go in and claim the same, or any part thereof; that on the day of sale, and at the sale in August, 1845, he was present and proclaimed aloud, so that J. Cowles and all present heard him, that he held these particular mortgages; that by reason of this notice, and notices of other liens, the road sold for much less than it otherwise would have brought.

The fraud and irregularities as specified, in part, are, that complainant's solicitor in said old bill, after the Jury were charged with the case, went into the jury room and conversed with them about their pending inquiry; that Tyler was really agent for persons at the North, who afterwards came forward as stockholders in the company, (defendants,) and it was their money and not his, that he paid for the road, and that he took the deed in his name in fraud, to have the apparent shield for the company of purchasing without notice, when they got title from him.

The bill admits that the contractors did not fully finish the road, but urges the failures of the old company as dispensing with this as a precedent duty to foreclosing on the road, and also sets up their practical waiver. It states that, as to a part of the road, Parker's are the highest liens, and that this Court has so decided. It prays, that any other certificate holders, if any, when discovered, may be made parties.

The bill then prays a foreclosure for his whole debt, either, 1st. On the entire road and its receipts; or,

2d. On that part which was built by Gray and others, under the mortgage of 2d August, 1842, and its net receipts; or,

3d. Upon the net receipts alone of the part so built: i. e. from Griffin to Atlanta.

To this bill there was a general demurrer filed by the defendant.

At the hearing, July Term, 1850, of Bibb Superior Court,

Macon & Western R. R. Co. vs. Parker.

Judge Stark overruled the demurrer, and counsel for defendant excepted.

CHAPPELL and McDONALD, for plaintiffs in error,

S. T. BAILEY, RUTHERFORD and COLE, for defendant in error.

Brief of C. J. McDONALD, for plaintiff in error.

1st. On the sale of property under the highest lien, the purchaser takes a perfect title. He cannot be disturbed by inferior liens. Georgia Decisions, part 2, p. 50. 2 Kinne, 201.

2d. The bill contains no facts and data on which the Court can base a decree.

3d. The mortgage is a joint one, and all the parties thereto and all who have the right to claim as mortgagees, are necessary parties to the suit. Story's Com. on Eq. Plead. §199, 169.

4th. There was a condition precedent in the contract, and the bill does not show its performance.

5th. The supplement to the contract is not signed by both parties, and, therefore, binds neither.

6th. By the terms of the decree, the purchaser is protected. He was to take the property discharged of all liens and incumbrances, and the bill shows that the proceeds of sale were applied to liens which overrode his. In such case he was not a necessary party. Sto. Eq. Pl. §639. 2 Kinne, 201.

7th. The bill impeaches the decree under which the sale was made, and in such case it is necessary that the proceedings of that cause should be set out fully and at large. Sto. Eq. Pl. $428. Gifford vs. Hart, 1 Sch. & Lefroy, 386. Kennedy vs. Daly, 1 Sch. & Le. 355, 374, 375.

He

8th. The sale was under a decree of a Court of Chancery, which provided for complainant's coming in and claiming. might have come in. He had notice of the decree and all its provisions, and if he refused to come in, the Court will not now lend its aid, to the injury of the purchaser. Paxton vs. Douglas, 383. 1 Brown's Ch. Rep. 171. 1 Vesey, Jr. 256, note 7. 10

Macon & Westeru R. R. Co. vs. Parker.

Paige's Rep. 383. 4 Johns. Ch. Rep. 643. 9 Paige, 260, 600. 1 Sug. on Vend. 103, §16. 12 Eng. Com. L. Rep. 585. 18 Ves. 469.

9th. Irregularity in the proceedings will not affect the purchaser. 1 Paige's Rep. 95, 96. 12 Ves. 106, also note 4.

10th. The reversal of a decree will not affect the title of the purchaser. 12 Ves. Jr. 89, note. 1 Ball & Beattie's Rep. 232.

11th. A bona fide purchaser under a decree fraudulently made, to whom no collusion can be brought home, will be protected. 1 Vesey, 567.

12th. Provisional sale may be made, and if found to be unnecessary, the purchaser will be protected. 9 Ves. 67, note 3.

13th. The allegation that complainant was not a party to the bill on which the decree of sale was made, is not an allegation amounting to a fraud. Sto. Eq. Pl. §117. 3 Swanston, 284. 16 Ves. 328, 329. 3 Mason, Wood vs. Dummer.

14th. No equity in the bill

1. The company had no power to mortgage the road, and mortgage therefore void. 3 Rob. Lou. Rep.

2. The contract claimed to be a mortgage, contains no provision for securing any such certificate as that held by complainant and sued on.

3. Complainant does not show at what time he became the owner of the certificate. If he purchased, pendente lite, he need not have been made a party. Calvert on Eq. 128. 3 Swans. R. 144. Story's Eq. Pl. 179, §194. 2 Atkyns, 174.

The bill does not show the consideration paid by complainant for the certificates and bonds held by him, and as against a real purchaser he cannot claim more than he paid. 1 Vernon, 476. Ib. 464. 15 Mass. R. 505. Ang. & Ames on Cor. 475.

Practice of opening bidding not recognized in this country. Daniel's Ch. Pr. 1465.

Brief of S. T. BAILEY, for defendant in error.

When a suit is commenced against five, and the writ is served only on three, and the plaintiff takes judgment against all five,

Macon & Western R. R. Co. vs. Parker.

that judgment is a lien only against those who were served. Purdy vs. Doyle, 1 Paige, 555.

In Chancery, whenever land is pledged to secure the payment of money, the conveyance is a mortgage, whatever form the conveyance takes. Kellerand vs. Brown, 4 Mass. 443.

When a vendee records and speaks of a conveyance as a mortgage, it is a circumstance to prove it a mortgage or security for money. Oldham vs. Halley, 2 J. J. Marshall, 115.

Every contract for the security of a debt, by the conveyance of real estate, is a mortgage. Henry vs. Davis, 7 J. C. R. 40. A mortgage to secure future advances is valid and binding. James vs. Morey, 2 Cow. 217.

A mortgage is only a security for a debt, and anything which transfers or extinguishes the debt, transfers or 'discharges the mortgage, as an incident of the debt. Barnes vs. Lee, 1 Bibb,

526.

It is not necessary to the validity of a mortgage, that it states truly the debt intended to be secured; but it shall stand as a security for the real equitable claims of the mortgagee, whether they existed at the date of the mortgage, or arose afterwards upon the faith of the mortgage, before notice of defendant's equity. Shiras vs. Carey, 7 Cranch, 35. 2 Con. R. U. S. 408.

When a purchaser has notice of a mortgage before he takes a deed or pays the purchase money, he is bound by the prior lien, and is not a bona fide purchaser. Beekman vs. Frost, 18 J. R. 544.

If a mortgage is registered, it is notice to all subsequent purchasers and mortgagees, and there must be proof of intentional fraud to postpone or bar the mortgage. Brinkerhoff vs. Lansing, 4 J. C. R. 70.

On a bill for foreclosure by the assignee of a mortgage, it is not necessary to make the mortgagee a party-he having parted with all his interest by an absolute assignment. Whitney vs. McKinnie, 7 J. C. R. 144.

A second mortgagee may file a bill to foreclose without making the first mortgagee a party. Rose vs. Page, 2 Sim. 471.

An assignment of the mortgaged debt, without conveyance of

Macon & Western R. R. Co. vs. Parker.

the legal title of the mortgaged premises, is sufficient to authorize the assignee to foreclose. Austin vs. Burbank, 2 Day, 474.

A mortgagee, although he has conveyed in fee the whole mortgaged premises, can yet foreclose; for his conveyance of the land does not pass his interest in the mortgage. Wilson vs. Troup, 2 Cowen, 195.

One of the mortgagees, to secure a joint debt, having assigned all his interest in the mortgaged premises, and the other having been paid his share, the assignee may file a bill by himself and in his own name to foreclose. King vs. Harrington, 2 Atk. 33. 2 V. B. H. Dig. 292.

Incumbrances not made parties are not affected by a decree, and purchasers take subject to such incumbrances. Finley vs. Bank U. S. 6 Cow. R. U. S. 319.

A purchaser under a sale by virtue of a decree of foreclosure, will only take title as against the parties to the suit, and he cannot set it up against those incumbrances and equities who are not parties to the suit. Hayne vs. Beach, 3 J. C. R. 459.

A second mortgagee may file a bill to foreclose, notwithstanding a prior sale under a decree, and the purchaser, either at private or public sale, is not protected against such incumbrances, if he had either constructive or actual notice of it, and the subsequent incumbrancer were not a party to the prior suit or decree, and he need not offer to pay or redeem the prior incumbrances, but is entitled to a sale of the premises. Vanderkamp vs. Shel

ton, 11 Paige's R. 28.

A decree against an executor, in invitum, unless impeached for fraud, binds the residuary legatees; but when it is by consent, it is subject to re-examination, and has no obligation unless proved to be just. Land vs. Gatlin, 2 Dev. & Bat. Eq. 37.

A judgment or decree binds nor protects none but those who are parties or privies to it. Marrigault vs. Harrison, 1 Brock. 126.

The purchaser at public sale of premises incumbered by a mortgage, purchases nothing but the equity of redemption, subject to the mortgage. Hartshorn vs. Hartshorn, 1 Green. Ch. R. 349.

VOL IX 49