Hays v. Muir , 1 Gunby 19 ( 1885 )

Mayo, J.

Where defendant in executory process has taken an appeal which has been adversely decided, she can afterwards enjoin the writ on any grounds not passed upon on the appeal.

2. A sale of property by the sheriff, for less than the amount of the special mortgages anterior to that of. the seizing creditor, is an absolute nullity, so far as it affects the rights of such anterior mortgagees.

3. But if the party holding the anterior mortgage file a third opposition, claiming the proceeds of the sheriff’s sale, and after the sale is made prosecute his opposition to judgment, which is rendered in his favor, ordering the proceeds to be paid over to him, he cannot refuse to receive the same and attack the sale as null, because the price at which the property was sold was less than the amount of his mortgage. He is estopped by the principle, that one cannot claim the proceeds of a sheriff’s sale and afterwards attack the sale as a nullity. 31 An. 103; 29 An. 275; 4 An. 416; 5 An. 18; 23 An. 765; 26 An. 630.