Ritch v. Eichelberger

Citations

• 13 Fla. 169

Syllabus

<p>Hoyail obtained judgment against Eichelberger, which was a lien upon all the real estate of E., consisting of several detached parcels, and execution was issued and levied upon the real property of E. Subsequently, E. mortgaged a portion of the property to Bitch. After this, C. H. & Co. obtained judgment against E. The sheriff, under the senior execution of Boyall, advertised for sale the lands levied upon, including the mortgaged lands, the lands not mortgaged being ample to satisfy the Soyall execution. Before, and at the time of the sale on the B. execution, L. and M. had purchased and were the owners of this Boyall judgment and execution, and the mortgagee repeatedly tendered to them, and also to the sheriff, the amount due thereon, informing them of his mortgage lien, and of his desire to protect it, which tender was refused. The mortgagee then requested the sheriff to offer for sale the property levied on which was not included in the mortgage, or to offer any small ¡fraction or subdivision of the property levied on, which the sheriff, under .■advice of the owner of, and of the defendant in the execution, refused sto do. The sheriff then released from levy considerable property not .mortgaged, and sold it under the O. H. & Co.’s junior execution, and of.fered for sale, and sold, against the protest of the mortgagee, the bulk of ¡the mortgaged property, consisting of several distinct tracts in bullq leaving unsold only a small part of the mortgaged property, of value entirely insufficient to secure the amount stated to be due on the mortgage,, but sufficient to pay the amount due on the Boyall execution: Held,</p> <p>1. That it was the duty of the sheriff to accept the tender of payment by the mortgagee, so that the mortgagee wou-ld not lose his security upon the mortgaged property. Held further, That it was the duty of the sheriff to have .first sold the property of the defendant in execution not1 covered by the mortgage, and that the sale of the mortgaged