4 Ga. App. 122 | Ga. Ct. App. | 1908
A laborer’s lien has priority of a mortgage given to secure the payment of purchase-money; and this is true even though the mortgage has been foreclosed and levy of the mortgage fi. fa. is made
3. Property seized under execution is in custody of the law, and can not be levied upon by virtue of other process. Any person having a lien on the property, or interested in the proceeds thereof, may come into the court having possession of the property or its proceeds and assert his rights. Mulherin v. Porter, 1 Ga. App. 153 (58 S. E. 60) ; Fulghum v. Williams Co. 114 Ga. 646 (40 S. E. 695, 1 L. R. A. (N. S.) 1055, 88 Am. St. R. 48); Freeman on Executions, § 268.
4. Where property has been seized and sold by the sheriff under execution, and, subsequently to the seizure, a laborer or materialman has foreclosed his lien on the property seized, and has been prevented from having a levy made, because the property was in custodia legis, he does not thereby lose his lien, but can place it in the hands of the sheriff, with notice to hold up the money arising from the sale of this property, until distributed by direction of the court.
5. Under the agreed statement of facts, the money in the hands of the sheriff, arising from the sale of the property of the defendants in fi. fa., was distributed by the court according to legal priorities.
Judgment affirmed.