Pasley v. Beland

Simmons, C. J. Where an owner of personal property gives a mortgage thereon and subsequently sells the same property to another, and thereupon the latter mortgages it to yet another, who forecloses his mortgage • ■ and has the property levied on as that of the last mortgagor, the first mortgagee can not foreclose his mortgage and place his execution in the hands of the levying officer so that the property may be sold freed from the incumbrance of his mortgage, and claim the proceeds <?f the sale in preference to the junior mortgagee. Section 2741 of the Civil Code does not apply to such a case, but only to a case where both mortgages are given by the same person on the same property. Judgment affirmed,. All the Justices concurring, except Fish, J., absent.