Milner v. Pitts & Son

Lamas, J.

The claimant testified that the land had been sold under a judgment younger than the mortgage, and that he bid at the request of the mortgagee’s agent, with the understanding that the lien of the mortgage should be transferred to the fund. The mortgagee was not present, and his agent denied that he made such an arrangement, or that he had any authority so to do, and by his own testimony, and that of the sheriff and bystanders, showed that public notice of the mortgage was given at the time of the execution sale. Where the equity of redemption is levied on, it requires the consent of the mortgagor, mortgagee and plaintiff in fi. fa., in order to allow the entire estate to be sold. Civil Code, § 2759; Hynds v. Oglesby, 93 Ga. 542. Under this statute, and the undisputed evidence, a verdict finding the land levied on subject to the mortgage fi. fa. was demanded by the evidence.

Judgment affirmed.

All the Justices concur.