Allen v. Brown

83 Ga. 161 | Ga. | 1889

Simmons, Justice.

The facts of this case will be found in the official report. Under the facts thus reported, it was not error in the trial judge to grant the nonsuit complained of. Allen, the plaintiff, voluntarily carried the mule to the place of sale, after having been told by the constable that he need not bring it. Before the sale, he told the constable that if was Whitley’s mule, and that if Whitley chose to sell his own mule he could do so. The mule was sold by the constable, and it does not appear from this record that Allen objected to the sale. He gave no notice at the. sale that the mule had been set apart to him as an exemption under the exemption and homestead laws. Some time after the sale (how loug after the record does not show), he brought this suit in trover to recover the mule on the ground that the execution under which it was sold was void.

1, We think that where a defendant’s property is levied on and properly advertised, as was done in this case, and the defendant voluntarily brings that property to the place of sale and stands by and sees it sold, without giving notice or raising any objection, he is estopped from recovering the property or its value from the purchaser, though the officer, as such, had no legal authority to sell. Reichert v. Voss, 78 Ga. 54.

But it is argued by counsel for the plaintiff in error that if the court had not erred in excluding the interrogatories of the plaintiff, the interrogatories would have shown that the plaintiff did not consent to the sale of the mule. While the court may have -erred, under the rule laid down in Fletcher v. Collier, 61 Ga. 653, in. excluding the whole of these interrogatories when a part thereof was admissible, we have read the interrogatories and do not think they would have aided him if the legal part had been admitted ; for while the plaintiff’ says therein that he did not consent to the 'sale, he does not say that he objected to it. If he did not consent to it at the time, it was his duty then and there to make known his objection, so as to put the purchaser upon notice. He could not stand by and see his property sold under an invalid execution without giving notice thereof, and afterwards say that in his own mind he did not consent; and that is what his evidence amounts to in these interrogatories. It is no doubt true that in his own mind he did not consent to have his property sold ; we apprehend that few defendants consent to the seizure and sale of their property by the officers of the law. If, however, they expect to make this non-consent available in future actions, they must make it known at the proper time and place, so as to put purchasers on notice.

2. We think the court was right in granting this non-suit for another reason; and that is, that the plaintiff did not show by his testimony that the defendant was in possession of the mule at the time the action was brought, as required by §3028 of the code. It is true that in the case of Robson v. Rawlings, 79 Ga. 354, this court held that where the property was in the possession of the defendant a few years before the bringing of the action, there would be some degree of presumption that the possession had not changed, and that he still had possession; and the same principle was laid down in Mercier v. Mercier, 43 Ga. 323 ; but we do not think that these cases control this case, under the facts disclosed by this record. In the case in 79 Ga. the action was brought within two or three years after the defendant had possession of the property, but in this case the record fails to disclose when this action was brought. It shows that the sale occurred in 1873, and that the trial of this case was in 1888, but there is no date in the record indicating when the suit was commenced. The only date we can find tending to throw any light on this is the date to one of the pleas of the defendant, which was sworn to in 1886. So from the record we cannot tell how many years elapsed after the sale before -suit was brought. This being personal property, we do not think that on the trial in 1888, proof of the possession of the defendant in 1873 would show that the defendant was in the possession thereof in 1888, or that the jury could so infer. For these reasons, we affirm the judgment granting this nonsuit.

Judgment affirmed.