
    DE KALB SUPERIOR COURT,
    September Term, 1842.
    James Willis vs. George McIntosh, Defendant, and Henry B. Latimer, Claimant.
    
      Claim an Appeal. Verdict, finding the property subject,
    
    1st. A Mortgagee, after the foreclosure ofhis mortgage, cannot levy on the mortgaged property after a sale on anotherfi.fa,, though of a junior date. He must claim the proceeds of the sale.
    2nd, After the foreclosure of a mortgage, Ae mortgager’s- right of redemption is gone.
    fe tie above case, a rule was granted at tfee last term of this Court, requiring the plaintiff to shew cause Why a new trial should not be granted, on the ground “ that it appeared by plaintiff’s own shewing, that the mortgage had been foreclosed and execution issued thereon before the sale of the property, and that plaintiff was present at the sale with his mortgage fi, fa, at the time of the sale of the property, and might and ought to have claimed the money. The property being sold by virtue of executions against the defendant.”
    On the trial of the above ease, it was shewn that the property levied on was included in the mortgage, upon the foreclosure of which, the fi. fa. levied was issued — that at the time of the execution of tfee mortgage, the property belonged to the defendant in execution.
    On the part of the claimant, it was shewn, that the same property had been previously levied on and sold by virtue of another fi. fa* against the defendant, of a later date than the mortgage, and that the equity of redemption in said mortgage had been foreclosed, and that the execution issued thereon was in the possession of the plaintiff, who was present at the sale, and who notified the crowd on the day of sale, that his mortgage was foreclosed, that he would not claim the money arising from the sale, but would proceed to levy his mortgage ft-fa- upon and resell the property ; and that at said sale, the claimant became the purchaser. ¾ ⅞
    Calhoun, for Plaintiff.
    Flokp, for Claimant
   By the Court. The plaintiff cannot dictate the terms of a Sheriff’s sale. The rights of purchasers at such sales must be defined and controlled only by the Law. Upon the foreclosure of plaintiff's mortgage, the defendant’s equity of redemption became barred, and the subsequent sale of the mortgage property, either by virtue of the mortgageJi. fa. or of any other ft. fa. passed the absolute title of the property to the purchaser, and not the equity of redemption merely. The right of the plaintiff was to claim the money.

Ordered that the new trial be granted.

JUNIUS HILLYER, j. s. c. w. n.,

and holding Court in De Kalb County.  