Per Curiam.
Where property encumbered by a deed to secure debt, under the provisions of the Civil Code, § 3306, was sold, subject to such security deed, by the grantor to a third person, who paid all of the purchase-price except the secured debt which the purchaser assumed and agreed to pay, and took a bond for title from the grantor, and thereafter the grantee in the security deed sued his debtor, the grantor, and obtained a judgment for the amount of the indebtedness so secured, and a special lien upon the property conveyed as security, even though the holder of the bond for title was not made a party to the suit or otherwise notified thereof, the equitable interest of.the holder of the bond for title was divested by a sale made in compliance with the terms of § 6037 of the Code under the fi. fa. issued on said judgment. Such proceeding did not violate the fourteenth amendment to the constitution of the United States, and the similar provision of our State constitu- tion, which declares that “no person shall be deprived of life, liberty, or property, without due process of law.”
Judgment affirmed.
All the Justices concur, except Russell, O. J., dissenting.
The defendants demurred on the ground that no cause of action was set forth, and that there was no equity in the petition.
The petitioner offered an amendment alleging that “Said lot is worth twenty-five hundred dollars or other large sum greatly in excess of the incumbrance held by the said Miss Pauline Schoenthal against the same,” and adding a second count in which, after making the same allegations as in the original petition, she alleged that section 6037 of the Civil Code, “as applied to a case in which the grantor in a security deed has, between the execution of said deed and the bringing of suit to reduce the secured debt to judgment, disposed of his interest in the property covered by said deed to a third person,” is unconstitutional, because in such case such third person is deprived of his property without due process of law, in violation of the State and Federal constitutions, in that said section provides that the interest of such third person may be divested by a proceeding to which he is not a party, of which he has no notice, and in which he has no opportunity to be heard in his own defense, and without any judicial proceeding against him; and because said section is in conflict with art. 1, sec. 1, par. 4, of the constitution of Georgia, in that it provides that in such case, if said third person may defend at all, he must do so by or through the grantee in the loan deed, and cannot defend the cause in person; and because said section is violative of the-provision of the constitution that the legislative, judicial, and executive powers shall forever remain separate and distinct, in that it constitutes an attempt on the part of the legislature to make an adjudication upon the sole question of indebtedness conclusive as to the liability of specific property, whether in the hands of the defendant or of another, to the payment of said indebtedness, and thus to strip the courts of their right, function, and duty to inquire into other facts which are essential to the existence of such liability; and because said section is violative of the 14th amendment to the constitution of the United States, in that it denies to such third person the right to interpose defenses to the taking of his property under said suit, which could be set up by the grantor in the security deed if he owned the property, and this denies to such person acquiring the interest of said grantor the equal protection of the laws. The petitioner says that for these reasons the sale by the sheriff was illegal and void and passed none of her right, title, or interest in the property to the purchaser at that sale. The further allegation was made that Paisley held said property adversely from the time of the sheriff’s sale to the time of his conveyance to Brackett, and that Brackett has since held said property adversely.
The defendants renewed their demurrer to the petition as amended. The trial judge sustained the demurrer and dismissed the suit, and exception was taken to this order.
Paul Donehoo and N. T. Anderson Jr., for plaintiff.
McElrealh & Scott, for defendants.