
    Flemister Grocery Company v. Burtz et al.
    
    No. 427.
    November 17, 1917.
    Injunction. Before Judge Morris. Cherokee superior court. June 4, 1917.
    
      ■D. W. Blair and Howell BrooTce, for plaintiff in error.
    
      J.ohn 8. Wood and Anderson & Roberts, contra.
   Gilbert^ J.

Where a plaintiff holding'a fi. fa. as transferee desires to levy it upon land in which the defendant has not a leviable interest because he has conveyed the land as security by outstanding deeds, and in order to levy his fi. fa., which is junior to the security deeds, the holder pays the outstanding debts and receives a transfer of the securities, and then, for the purpose of levying upon the land, a quitclaim deed'to the defendant in fi. fa. is executed and recorded as provided in the Civil Code (1910), § 6038, if the defendant in fi. fa. then tenders him the full amount of the principal, interest, and costs due on the fi. fa., it is his duty to accept the same; and if he declines to accept such tender, and undertakes to have the property sold, injunction will lie to prevent the sale.

Judgment affirmed.

All the Justices concur, except Fish, G. J., absent.  