Kennedy v. Bank of Collins
Kennedy, sheriff v. Bank of Collins, for use, etc.
Summary
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Opinion of the Court
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Jenkins, J.
Where money is in the hands of a levying officer, he may pay it over to the plaintiff by whose process it was raised, unless other claimants deposit their liens with him. Civil Code (1910), § 5348. But where property is sold by virtue of certain common-law fi. fas., the liens of which are inferior in dignity to an older recorded mortgage which has been duly foreclosed and the mortgage fi. fa. placed in the hands of the levying officer prior to the sale, such officer would be subject to rule by the owner of the superior mortgage fi. fa., upon the money so raised being paid out to satisfy the liens of the inferior judgment fi. fas., notwithstanding the fact that the officer may have held up the fund for a period of about six months subsequent to the sale, and paid it out to the owners of the inferior liens prior to the bringing of any rule or other proceeding claiming the fund by virtue of the older lien.
Judgment affirmed.
Wade, G. J., and Luke, J., coneur.
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