11 S.E.2d 188 | Ga. | 1940
1. Proof of the value of land and of the age of a life-tenant is not sufficient evidence on which to fix the value of the life-estate therein. Where a general tax execution against a life-tenant is levied upon land in which the tenant has a life-estate, the life-estate only, and not the fee, is the property under the levy; and where the levy is attacked as excessive, it is necessary to prove the value of the life-estate, and that the land is capable of being subdivided into parcels, the sale of one or more of which would satisfy the execution. The evidence here failed to show either, and a nonsuit on this issue was demanded.
2. An innocent purchaser at a judicial sale is not chargeable with the neglect of duty on the part of the sheriff to advertise as required by the Code, § 39-1101. He is only required to see that the officer has authority to sell, and that he is apparently proceeding under the prescribed forms. The title of such an innocent purchaser is not affected by the sheriff's failure to advertise the sale.
1. To determine whether or not the levy was excessive it is first necessary to find what property was sold. The tax execution was against the plaintiff for taxes due by her to the State and county for the year 1920. Neither the execution nor any other evidence in this record shows it to have been for taxes on the specific property sold. Had the sale been made for the taxes on that specific property alone, although the plaintiff owned only a life-estate, the fee would have passed, and the sale would have affected the remainder as well as the estate for life. But since the property was sold as the plaintiff's property under an execution against her, only the interest of the tenant for life was levied upon or passed by the sale. Clower v. Fleming,
2. There was no advertisement of the sale, as required by the Code, § 39-1101. Under this statute the duty was imposed upon the sheriff to publish weekly, for four weeks immediately preceding the sale, notice of the sale. The statute does not provide that the sale is void if the sheriff fails to perform his duty. The purchaser, if innocent, has rights under such sale, and these rights can not be destroyed by failure of the sheriff to perform the duties which the statute imposes upon him. Under § 39-1311, all such irregularities create liabilities against the officer, and the innocent purchaser shall be bound only "to see that the officer has competent authority to sell, and that he is apparently proceeding to sell under the prescribed forms." Under the facts in the present case the sale was valid, and the purchaser's title was not affected by the sheriff's failure to advertise. Brooks v. Rooney,
Judgment affirmed. All the Justices concur.