Lathem v. Smith

Atkinson, Presiding Justice.

1. Where a mortgagee named in a chattel mortgage receives a part of the property from the mortgagor in ex-tinguishment of the debt, and the mortgage is canceled of record, such mortgagee can not afterwards assert the mortgage as against a junior judgment creditor of the mortgagor, in an equitable action to enjoin levy and sale of the property under the junior execution. See MacIntyre v. Ferst, 101 Ga. 682 (28 S. E. 989), and cit.; Booze v. Neal, 6 Ga. App. 279 (2) (64 S. E. 1104). The mortgage in question having been canceled distinguishes the cases of Sims v.…