Buckner v. Chambliss, 30 Ga. 652

Buckner v. Chambliss

30 Ga. 652 | Ga. | 1860

By the Court.

Lyon, J.,

delivering the opinion.

1. The plaintiff, in the Court below, relied, for recovery of the premises in dispute, upon proof of prior possession. The proof showed that he had been in possession of the lot sued for from 1840 to the time he moved to the State of Louisiana, and that he then left one James Baker in possession, as his tenant. On this proof, the defendant was not entitled to a non-suit. Prior possession will prevail in ejectment over a subsequent one acquired by mere entry, without any lawful right. Johnson vs. Lancaster, 5 Ga., 39.

2. The attornment of Baker, the plaintiff’s tenant, to the purchaser at sheriff’s sale, and his subsequent possession of the premises under the purchaser, could not be such adverse holding against the plaintiff as would create a statutory bar to his right of action, and the Court properly rejected the evidence.

3. The conduct of Salter, in getting possession of the note on Harris from Oats, suing out an attachment upon it, and *658causing the land to be levied on, was most wrongful and fraudulent; but that conduct of his did not lead to the sale of the lot; that is, the land was not sold under that attachment, but under executions that were open, unpaid, and subsisting liens against the land, over which Salter had no control. The land was levied on by the sheriff of the county, having been pointed out by the plaintiff’s attorney in one of the executions, for-that purpose. To all this Salter was no party in the levying upon, pointing out, or sale of the lot. nor did he have any interest in the executions selling the lands. The attachment he had sued out was not then in judgment, but the land was sold fairly and in good faith by the sheriff for the purpose only of producing satisfaction of the liens levied. The sale was a good one, and Salter’s fraudulent conduct in procuring the note, suing out the attachment, etc., could not, and did not, affect that sale, and he was as competent to buy the land at such sale as any one. The charge of the Court, in this respect — that if Salter was guilty of a fraud and Morris and Brady knew of it, they stood in no better position than Salter — was erroneous; for if the Court referred to Salter’s fraud in respect to his attachment, it had no relevancy, and did not affect the sale or his purchase, as we have said, if the Court referred to any fraud of Salter’s in the purchase, there is no evidence of any to warrant the charge.

4. The proof was, that Morris, Brady and Salter bought the land jointly at the sheriff’s sale; in fact, the sheriff’s deed is made to them. The Court charged the jury, “that if they combined not to bid against each other, the sale was void.” This was error. It was equivalent to saying that persons could not buy property at sheriff’s sale on joint account, for every agreement to buy on joint account implies an agreement that they will not bid against each other. There is no such rule of law as that. If they had used any means unfairly or fraudulently to prevent other persons from bidding for the property, that would have defeated the sale as to them; and that is what we suppose the Court intended to charge; but stated broadly as the charge is in the record, it makes a very material difference.

5. ' After the sale was over and the land bid off by Morris, Brady and Salter, Salter remarked to the sheriff that he thought the Applewhite fi. fa. one of the three under which *659the land was sold, was paid off, and if it should so turn out, he thought he would get the balance of the money on his attachment, and proposed to the sheriff to give the sheriff the purchaser’s note for the balance of the bid, after paying off the expense of the sale and the costs due on the three fi. fas. To this the sheriff consented, and the purchasers paid up the expenses and costs due on the three fi. fas., amounting to something like $41 00, and gave the sheriff their notes for the balance of the sale. Afterwards, and after he had made the deed to the purchaser, but before he had delivered it to the purchaser, King, the attorney of Salter in the attachment, gave the sheriff notice not to turn over the deed until his fees in the attachment — amounting to some thirty dollars — was paid; and the sheriff held the deed accordingly, and it was not given up until two or three years previous to the trial. On this proof, the Court charged the jury, that “to Drake- a sheriff’s sale good, the purchase-money must be paid, and if the jury believe that Morris, Brady and Salter never paid up the bid, then they acquired no title.” Under the facts of this case the instruction was erroneous. The land was legally sold, as we have shown, and when the sheriff executed the deed the title passed away from the defendant in execution and the plaintiff in this suit; and if the sheriff chose to make the title without getting the money, that is a question between him and the purchaser, there being no fraud in the sale itself. The defendant in execution and the plaintiff here is not affected by the non-payment of the money. It makes no difference with him, for the sheriff is responsible to him for the proper application of the money, and when he is called upon to account, it will be no reply for him to say that he did not get it. He is bound, to have it. This is obliged to be so; for in this case, when the purchasers acted in good faith and paid up a .part of the bill, how could the sale be good as to part, and bad as to part ? The purchasers paid up all that the sheriff required, and had he required the whole, the presumption is, that they would have paid the whole.

Judgment reversed.