Evins v. Gainesville National Bank

Citations

• 80 Fla. 84
• 85 So. 659

Syllabus

<p>1. An execution issued on a judgment, called a writ of fieri facias, is a lien upon the personal property of the defendant in execution from the time such writ shall be delivered to the sheriff.</p> <p>2. Lands and tenements, goods and chattels, equities of redemption in real and personal property, and stock in corporations are subject to levy and sale under execution.</p> <p>3. A mortgage, in this State, is. a specific lien upon property, and is not, of itself, a conveyance of the legal title.</p> <p>4. A mortgagee, either before or after default in payment, has no title by virtue of his mortgage to the mortgaged real estate. His interest is simply a specific lien for the security of the debt mentioned in the mortgage, and he can acquire the legal title as against the mortgagor, or his grantees, only by outbidding every other pferson at the foreclosure sale.</p> <p>5. A mortgage of real estate is regarded as an accessory to the debt secured by the mortgage, and the assignment of the debt ipso facto carries with it the mortgage security.</p> <p>6. As a general rule the lien of an execution operates upon and binds all property, real or personal, which is the subject of levy and sale in obedience to its mandate.</p> <p>7. An execution is a lien only upon such property as the writ may be levied lipón; and under the statute only “lands and tenements, goods and chattels, equities of redemption in real and personal property and stock in corporations” are subject to levy and sale under executions, therefore, a mortgage upon real estate, being merely a contract lien upon the land, is not subject to levy and consequently not subject to the lien of an execution.</p>