Necessity for consent.

- Where the equity of redemption is levied on, it requires the consent of the mortgagor, mortgagee, and plaintiff in fi. fa. under O.C.G.A. § 44-14-47, to sell the entire interest in the property so as to free the same from the lien of the mortgage. Milner v. I.H. Pitts & Son, 117 Ga. 794, 45 S.E. 67 (1903). See also Hynds Mfg. Co. v. Oglesby & Meador Grocery Co., 93 Ga. 542, 21 S.E. 63 (1894); De Vaughn v. Byrom, 110 Ga. 904, 36 S.E. 267 (1900).

Reason for rule.

- The reason for the consent rule is patent. In the first place, the mortgage creditor with an unforeclosed mortgage is not in a position to assert a claim to the fund. Generally, a creditor cannot claim the proceeds of a sale, when the creditor has not the power personally to enforce a sale. Again, the debtor has the right under the law to insist upon a foreclosure before the property can be seized to satisfy the mortgage, and has the privilege of redeeming the property at any time pending the proceedings to foreclose and to sell. Hence, O.C.G.A. § 44-14-47 requires the debtor's consent, as well as the mortgagee's, before a sale can divest this special lien. Brunswick Sav. & Trust Co. v. National Bank, 102 Ga. 776, 29 S.E. 688 (1898).

Consent need not be in writing.

- It is not necessary, under O.C.G.A. § 44-14-47, that the consent of the mortgagor, mortgagee and plaintiff in fi. fa., levied, to sell the entire fee in the land levied on, should be in writing. D. Goode & Son v. Rawlings, 44 Ga. 593 (1872).

Inapplicable to sales by receivers.

- O.C.G.A. § 44-14-47 does not apply to sales by receivers, the statute being restricted in its operations to sales where the equity of redemption is levied on under an execution. McLaughlin v. Taylor, 115 Ga. 671, 42 S.E. 30 (1902).

Mortgagee abandoning lien and claiming proceeds.

- Until foreclosed, a younger fi. fa. can sell only the equity of redemption, unless the mortgagee abandons the lien and suffers the entire property to be sold, coming in for distribution of the proceeds. Except by agreement, the mortgagee cannot claim the proceeds of such sale. Harwell v. Fitts, 20 Ga. 723 (1856).

Claiming money arising from sale of property not mortgaged.

- Mortgagees may waive the lien of their mortgages and claim the money with consent of mortgagor, without foreclosure, but they cannot claim, against the rights of other judgment creditors, even with the consent of the defendant, money arising from the sale of property not mortgaged. Byars v. Bancroft, Betts & Marshall, 22 Ga. 34 (1857).

Sale of entire estate after sale of equity of redemption.

- Under O.C.G.A. § 44-14-47, the mortgagor cannot, after a sale of the equity of redemption by joining in a consent with the mortgagee, lawfully cause the entire estate in the land to be sold and conveyed under another common-law judgment in favor of the mortgagee against the mortgagor. Hitch v. Bailey, 115 Ga. 891, 42 S.E. 252 (1902).

Sale by virtue of execution on older judgment.

- If there be not money enough raised from the sale of the equity of redemption, or interest in the land subject to the mortgage, to pay off the judgment which is older than the mortgage, an execution issued upon such older judgment may be levied upon the residue of the estate in the land, and being older than the mortgage, it will sell the land free from its incumbrance, and the title of the purchaser will be good against the mortgage. Tarver v. Ellison, 57 Ga. 54 (1876).

Lien of mortgage older than judgment.

- A mortgagee sued the mortgage notes to judgment and had the execution levied on the premises covered by the mortgage. By virtue of an agreement between the mortgagor and mortgagee, who was also plaintiff in fi. fa., the entire estate was sold; and it brought full value. Just prior to the sale a third person lodged with the sheriff a general common-law judgment against the mortgagor, of date younger than the mortgage but older than the judgment based on the mortgage debt, and ordered the sheriff to hold up the fund arising from the sale. It was held, that on a rule brought against the sheriff for a distribution of the fund, the mortgage should first be paid and the residue applied to judgment of the intervenor. Both judgment creditors have liens, but the lien of the mortgage is older, and is therefore entitled to priority. Hughes v. Mount Vernon Bank, 4 Ga. App. 23, 60 S.E. 809 (1908).

Estoppel to deny consent.

- Where the holder of the subsequent mortgage failed to question the legal right of the other holder to intervene in a proceeding for distribution of process from a foreclosure without foreclosing the holder's mortgage, and where the jury found against the holder of the subsequent mortgage, and judgment was entered in favor of the other holder, the holder of the subsequent mortgage will not be heard to insist for the first time that it is illegal because the earlier mortgage had not been foreclosed and no equitable reason for claiming the fund derived from a sale under the subsequent mortgage was set out in the intervention. Bank of Cumming v. Goolsby, 34 Ga. App. 217, 129 S.E. 8 (1925).

Sale by virtue of execution on junior judgment.

- The sale of land by virtue of execution issued on a judgment junior to a mortgage, not foreclosed, conveys to the purchaser only the property sold, which, in this state, is the equity of redemption, or its equivalent, which is the estate in the land subject to the mortgage debt, and such sale divests the lien of a judgment older than the mortgage, only upon that interest or estate in the land which is sold. Tarver v. Ellison, 57 Ga. 54 (1876).

Retention of title note.

- Where a firm bought certain mules, and gave to the vendors a purchase-money note in which it was provided that the title should remain in the latter until payment and the mules were sold under later common-law executions, the facts do not make a case falling within O.C.G.A. § 44-14-47. Browder, Manget & Co. v. Blake & Madden, 135 Ga. 71, 68 S.E. 837 (1910).

To deprive mortgagees of the priority acquired at a sale by consent, the other creditors must show clearly a superior equity. Baker & Wilcox v. Wimpee, 22 Ga. 69 (1857).

ALR.

- Chattel annexed to realty as subject to prior mortgage, 41 A.L.R. 601; 88 A.L.R. 1114; 99 A.L.R. 144.

Validity of chattel mortgage where mortgagor is given right to sell, 73 A.L.R. 236.

Sale in inverse order of alienation, 131 A.L.R. 4