11 Ga. 423 | Ga. | 1852
By the Court.
delivering the opinion.
This was an action of ejectment, brought by the heirs at law of Martin Brooks, deceased, to recover lot No. 134, in the City of Columbus. The plaintiffs proved on the trial, that they were the children and only heirs of the decedent, ivho died in possession of the premises in dispute, and who had lived thereon for several years previous to his death; that the rent of the lot was worth $100 per annum, and that the defendants were in possession at the time the suit was instituted.
The execution was objected to for the reason, that it did not appear from the entry thereon, nor was there any other legal proof of that fact, that the lot in controversy had been sold at all, as there was no date nor signature by the officer to the entry of sale on the fi. fa. The defendants’ counsel, to obviate this alleged omission, proved that the endorsement of sale, as well as the distribution of the proceeds, was in the handwriting of Theobald Howard, the Deputy Sheriff. The Court admitted the testimony, and to this decision counsel for the plaintiffs excepted.
The deed recites that John C. Mangham, the Sheriff, seized the lot as the property of Martin Brooks, and after being advertised according to law, that he did, on the 4th day of June,
The case of Clements against Henderson, (4 Ga. R. 148,) is relied on as authority for the plaintiff in error. That was an administrator’s deed, and the two cases are consequently clearly distinguishable. In cases of sale under special power, as that of a Tax Collector, and by order of Courts of limited jurisdiction, as Courts of Ordinary, the execution of the power must show upon its face, that the Statute has been strictly complied with. But it is otherwise with sales made by Sheriffs under judgments of Courts of general jurisdiction. Munic vs. The President and Selectmen of Natchez, 4 Smedes & Marshall, 602.
But independently of this, the errors of omissionnrof commission on the part of the Sheriff, especia^P^fe'l^^^t^s made, and over which the purchaser has feet the validity of his title. Whether the fitmn^f the execiii tion be imperfect or not made at all, is quence to the purchaser, who pays his Sheriff’s deed. 7 Black. R. 154. 1 Johns. Cases, 153 Yerger, 179. In Sullivan & Price vs. Hearndon (Fa. Ga. R. 294,) this Court expressed the opinion, that if the Sheriff has authority to sell property, a failure in the performance of any part of his duty, and for which he would be compelled to indemnify the party aggrieved, to the extent of the injury received, would not destroy the title of an innocent purchaser.
It is conceded, that at Common Law the fi. fa. could proceed, notwithstanding the death of the defendant. But it is concluded, that by the Statutes of this State, a defendant, after execu
But is there nothing which may be done in England, after the execution has issued, to arrest its progress ? What was the object of the writ of audita querela, but to be relieved from a judgment or execution, for some injustice of the party who obtained it ? It is true, that the summary remedy by motion, has superseded mainly this ancient process. Still the change as to the mode of relief, does not weaken the force of the reply, that at Common Law, no, less than by the Statutes of this State, the defendant in execution has the right to be relieved from the wrongful acts of the opposite party.
It is manifest, then, that it will not do to rest this proposition upon the ground occupied by counsel. To change the Common Law in this respect, we are clear, would require the interposition of the Legislature. It can only be done by Statute. The argument to be deduced from the Statutes already of .force, and to the provisions of which I have adverted, constitutes, in our opinion, no such case of repeal by necessary implication, as would authorize this Court to make the change.
And while it is conceded that this is not precisely the question adjudicated in Ingram vs. Hurt, (10 Ga. R. 568,) yet this case is fully embraced in the reasoning of the Court in that case ; and it only remains to repeat here, the intimation thrown out there, that is, that the Court of Equity is always open for the
Let the judgment be affirmed.