People ex rel. McMillan v. Visher

Norton, J.

Held 1st: That a decree of foreclosure does not bar the equity of redemption in the mortgagor, so as to prevent a creditor of the mortgagor from acquiring a lien upon it at any time before a deed is executed to the purchaser under the mortgage sale

2d. That a sale under a judgment does not extinguish the lien of the balance of such judgment, for any purpose whatever until the de.ed of the Sheriff is actually executed under such sale, and that the judgment creditor so selling may redeem from a sale under a prior mortgage, upon the balance of his judgment, even after the sale under the judgment has become absolute by the expiration of six months from the sale.

3d. That the sale under one judgment does not cut off the lien of a subsequent judgment, until a deed is actually executed under such sale. That the expiration of six months after the sale under a judgment, does not cut off subsequent liens upon the premises (in the hands of the same judgment creditor) but that the execution of a deed is necessary for that purpose. The Court also held that the relator might redeem under his second judgment, notwithstanding the sale made under the J esse Smith judgment arid a deed given under it.

4th. That the payment of money under protest in writing, on a re demption does not invalidate the payment or affect the redemption.

5th. That no subsequent act on the part of the relator, while the money is in the hands of the Sheriff, before paying it over to the purchaser, who is entitled to it, and for whom it is paid, can affect the payment or redemption, although he seize and retake the money by attachment in a suit against the Sheriff.

And that, although the money was still attached in the hands of the Sheriff’s depositories by the relator, so that it could not be paid over to the purchaser, still a mandamus will issue to require the Sheriff to execute a deed to relator. A peremptory mandamus was therefore allowed.