
    7270.
    Toney v. Puckett, marshal, et al.
    
    Decided July 29, 1916.
    Rehearing denied September 15, 1916.
    Money rule; from municipal court of Atlanta. January 22, 1916.
    
      Morris Machs, S. A. Massell, for plaintiff in error.
    
      Daley, Chambers & Daley, Hewlett, Dennis & Whitman, contra.
   Broyles, J.

1. When property on which there is a mortgage which has been foreclosed is levied on under other process, the holder of the mortgage has the option to place liis mortgage fi. fa. in the hands of the officer, cause the title unencumbered to be sold, and claim the proceeds, according to the date of his lien. Kirby v. Reese, 69 Ga. 452. In this case, while there was an issue of fact as to whether the property was sold free from the lien of the mortgage, the evidence was amply sufficient to warrant a finding that it was so sold. Accordingly, the funds arising from the sale were properly applied to first satisfy the mortgage debt.

2. There is no merit in any of the assignments of error, and the court did not err in overruling the motion for a new trial.

Judgment affirmed,.  