Bryan v. Whitsett

39 Ga. 715 | Ga. | 1869

Brown, C. J.

The husband in this case refused to take the benefit of the Homestead and exemption of personal property, for the use of his family, and the wife filed her petition and schedule in the Court of Ordinary, praying to be allowed the property exempt by law for the benefit of the family. After the filing of her petition, and before the order of the Court of Ordinary allowing her the exemption, the husband was adjudged a bankrupt. The property remained on the premises where the husband and wife resided, from the time when the wife filed her petition in the Court of Ordinary till a day or two before the sale, when it was taken possession of by the assignee in bankruptcy, with the assistance of the husband, and was sold by the assignee, when Whitsett became the purchaser, and paid the price for which it was bid off to the assignee, which went to the creditors of the husband. After this sale, Mrs. Bryqm, the wife, sued out her possessory warrant against Whitsett for the recovery of the possession of the property, which was adjudged to her by the Notary Public who heard the case, who, under our Constitution, is ex officio a Justice of the Peace. A certiorari was sued out, and the case was afterwards heard in the Superior Court, when the judgment of the Justice of the Peace was reversed by the Superior Court. That judgment is brought here for review.

We think the judgment of the Superior Court was right. To sustain a possessory warrant, it must appear that the personal property, the subject matter of the litigation, was in the “ peaceable and legally acquired possession of the complaining party,” and that it was taken, enticed or carried away, either by fraud, violence, seduction, or other means, from the possession of such party, or that it has disappeared without his consent, and has been received or taken possession of by the party complained against, under some pretended claim, and without lawful warrant or authority. This case presents no such state of facts. This property was taken possession of by the agent of the law, and by authority of law. If a sheriff should find the property of another person in the possession of a defendant in fi.fq., and should levy on and sell it, the purchaser could not be said to take possession of, or to receive the property without lawful warrant or authority. He who purchases property at the sale of an officer of the law, acquires the possession legally, and the owner, if there be a better title, cannot recover the property by possessory warrant. He must bring trover or. other proper action to try the title.

We express no opinion as to the title in this case, as that question is not made by this record.

Judgment affirmed.