Lathem v. Smith

Atkinson, Presiding Justice. 1. Where a mortgagee named in a chattel mortgage receives a part of the property from the mortgagor in ex-tinguishment of the debt, and the mortgage is canceled of record, such mortgagee can not afterwards assert the mortgage as against a junior judgment creditor of the mortgagor, in an equitable action to enjoin levy and sale of the property under the junior execution. See MacIntyre v. Ferst, 101 Ga. 682 (28 S. E. 989), and cit.; Booze v. Neal, 6 Ga. App. 279 (2) (64 S. E. 1104). The mortgage in question having been canceled distinguishes the cases of Sims v. Kidd, 55 Ga. 626, Baker v. Gladden, 72 Ga. 469, Ennis v. Harralson, 101 Ga. 282 (28 S. E. 839), National Bank of Athens v. Exchange Bank, 110 Ga. 692 (36 S. E. 265), Browder v. Blake, 135 Ga. 71 (68 S. E. 837), and Moughon v. Masterson, 140 Ga. 699 (4) 704 (79 S. E. 561), relied on by the plaintiff in error, and similar cases involving enforcement in equity of unforeclosed existing mortgages. 2. On the trial of the case before the judge without a jury, on an agreed statement of facts making the case as first above indicated, it was not error to refuse injunction and order the levy to proceed. Judgment affirmed. All the Justices concu/r. Walter M. McEver and Joseph Q. Collins, for plaintiff. C. E. Smith, Jr., for defendants.