
    *Horton & Rikeman, plaintiffs in error, vs. Morris Kohn, defendant in error.
    (Atlanta,
    January Term, 1873.)
    Mortgage — Illegal Sale — Injunction.—When a mortgage fi. fa. for the sale of a parcel of land was, under the orders of the plaintiff’s attorney, levied on the land, and the same was sold at sheriff’s sale, and the money raised applied to the fi. fa., and subsequently, on a statement that the fi. fa. was lost, the plaintiff procured an alias fi. fa. to issue (taking no notice of the sale) and caused it to be again levied on the land, and a claim was interposed by one claiming under the defendant in the mortgage:
    Held, That the claimant may attack the plaintiff’s fi. fa. by showing that the orders had been complied with, and the land sold according to its commands, and that it was not competent for the plaintiff ifi reply to show that said sale was illegal, it having been made whilst there was a pending injunction prohibiting said fi. fa. from proceeding. The Court will not permit the plaintiff to set up his own wrong; said sale and the return thereof are existing facts, and until set aside by a proceeding for that purpose cannot be treated as null by the very party who thus disobeyed the order of the Chancellor.
    Injunction. Illegal sale. Mortgage. Before Judge Harvey. Floyd Superior Court. January Adjourned Term, 1872.
    On October 30th, 1871, an alias mortgage execution in favor or Horton & Rikeman, against John G. McKenzie, was levied upon the west half of lot number forty-six, in the Coosa division of the city of Rome, with the improvements thereon, as the property of the defendant. A claim was filed to the land levied on by Morris Kohn. Upon the trial of the issue thus formed, the evF dence made the following case:
    On the 28th day of March, 1851, Alfred Shorter sold to John G. McKenzie lot number forty-six, in the Coosa division of the city of Rome, taking two notes, each for $200 00, and giving his bond for titles. McKenzie paid on these notes at different times $175 00. On the 21st of August, 1852, he sold one-half the lot to Felix B. Moyers. Shorter sued the aforesaid notes to judgment, and on the .... day of January, 1857, had the execution based thereon levied on said lot. On the 3d of February, of the same year, after the levy, he filed, his deed in the clerk’s office, conveying said property to *McKenzie. The entire lot was sold under this levy, and Moyers became the purchaser for $317 00. He paid to the sheriff his bid and received a deed.
    On the 10th of February, 1853, McKenzie executed a mortgage on the property levied on to Horton & Rikeman, to secure the payment of $600 00. This instrument was recorded on March 19th, 1853. Proceedings were instituted to foreclose this mortgage, and on February 10th, 1857, a rule absolute was taken. On April 1st, of the same year, the mortgage execution was levied on the property in dispute. Moyers filed his bill against Horton & Rikeman, and Thomas S. Price, the deputy sheriff making the levy, praying that the writ of injunction may issue restraining any further proceeding on said levy. The bill was sanctioned on June 29th, 1857, and the writ of injunction issued in accordance with the prayer. On December 11th, 1867, an alias mortgage execution was issued. On the 3d of March, 1868, under the directions of plaintiffs’ attorneys, the injunction still pending, the land in dispute was sold at sheriff’s sale under said execution', and purchased by Daniel S. Printup for $30 00. The proceeds of the sale was applied to the satisfaction of the process under which the property was sold. On the 27th of March, 1868, the bill upon which the injunction aforesaid issued, was dismissed for want of prosecution. On October 24th, 1871, the claimant being in possession of the property in dispute, a second alias execution was issued at the instance of Printup, and levied on the 30th day of the same month.
    The evidence was voluminous, but the above statement is all that is necessary to an understanding of the decision.
    The Court charged the jury as follows: “If you should find that this same property was sold by the order of the plaintiffs or their attorneys, under the mortgage fi. fa. and said fi. fa. took the proceeds of the sale, or its share of it, it divested the mortgage lien until the sale should be set aside, and in order to set it aside and resell, so as to conclude the rights of persons not holding under McKenzie, the defendant in fi. fa., or deriving title through or from those who did hold under *him, such persons who have any rights that would be affected by the resale, must have had notice of the proceeding to order a new sale. (The subsequent order for the last alias fi. fa. to issue not being sufficient to conclude the rights of any but the defendant in fi. fa. and those in privity with his title.) Even if the plaintiffs were enjoined at the time of the sale that would not alter the case, as they would be estopped from saying the sale made by them was void.”
    The jury returned a verdict finding the property not subject.
    The plaintiffs moved for a new trial upon the ground, amongst others, of error in the aforesaid charge. The motion was overruled and plaintiffs excepted.
    Underwood & Roweee ; Printup & Fouche, for plaintiffs in error.
    Dúnuap ScoTT, for defendant.
    
      
      IUegal Sale — Creditor and Purchaser. — “In a proper case for á levy and sale under § 1970 of the Code, the filing and recording of a deed would be a condition precedent and a sale without such preliminary- would be illegal. But it is a mistake to suppose that the creditor could, after procuring an illegal sale to be made, turn upon the purchaser with the same process and sell the property away from him without first having the illegal sale set aside by a direct proceeding for that purpose.” Napier v. Saulsbury, 63 Ga. 480, citing principal case.
      Alias Fi. Fa. — “Under the Code, though the judge must order the clerk to issue the alias fi. fas. it is ex parte.” Lowry v. Richards, 62 Ga. 371, citing principal case.
    
   McCay, Judge.

It is not necessary to discuss many of the points so elaborately insisted on in the argument of this case. If the charge of the Court, as to the effect of the previous sale upon the fi. fa. is right, there is no error in the judgment refusing a new trial. In common language we call a process of this sort a fi. fa. but it is in fact an order to the sheriff to seize and sell a particular parcel of land. This the proof showed the sheriff had done. That the plaintiff’s attorney had directed him to levy the fi. fa. on the land, that he had done so, advertised and sold it, and that the proceeds had been applied to the mortgage fi. fa. Prima facie, this was a complete exhausting, of the functions of the mortgage fi. fa. Its orders had been fully obeyed. The land it ordered sold had been all sold, and it could no longer proceed. It was functui officio. In reoly . this it was insisted that this sale, though made under the directions of the plaintiff, was void, that at the time of the sale there was pending in Floyd Superior Court a *bill in equity in favor of Moyers, enjoining the plaintiff from selling this land by virtue of said mortgage ft. fa., that therefore, in thus selling the land, he was disobeying the injunction, acting illegally, in contempt of the injunction, and that the whole proceeding was therefore void.

We do not at present decide whether or not this is so. We incline to think that the plaintiff in the bill and those claiming under him, may insist upon its illegality and invalidity. But it is not in the mouth of the plaintiff in the ñ. fa. to come thus collaterally into a Court and plead the illegality of his own acts. We do not say he is estopped, in the sense of that rule which estops a man from denying the validity of an act or statement of his, under which a third person has .paid out money, or put himself in a position where it would be a fraud upon him to permit the other to repudiate his act.

The ground of this case is, that one will not be allowed to assert in a Court that his own act was a violation of law.

This levy and sale are existing facts.. They actually tooh place. Whether they are void or not may depend on the option of Moyers, or those claiming under him, or, perhaps, on the discretion of the Chancellor whose order was disobeyed. At any rate, we think the plaintiff cannot say they are void until there has been a proceeding to-set them aside. This has never been done. It is absurd to say that the order for the alias fi. fa. does this. The issue was not made before the Judge. Not only did the order pass without notice, but there was nothing in the papers even calling the attention of the Court to the fact. It was simply ignored.

We think, therefore, the Court was right in his charge on this point, and if so, the issue was properly found by the jury for the claimant.

Judgment affirmed.  