152 Ga. 822 | Ga. | 1922
This case is a sequel to Brewer v. New England Mortgage Co., 144 Ga. 548 (87 S. E. 657). W. M. and Lula Gower intervened in the case cited. Intervenors attacked, on various grounds, a sheriffs sale of three parcels of land, sold separately, and prayed that the sale be set aside, and the deeds of the sheriff made pursuant to the sale be canceled. The sheriff and purchasers were made parties defendant to the intervention. An amendment to the petition wag offered, alleging, in substance,
The following appears in the brief of evidence: “ It was agreed between counsel that there was no issue as to the Gowers claiming title to the lands; the one issue in this case being as to the time of the sheriff’s sale on June 3, 1919.” Under this stipulation the only matter which requires investigation, so far as the motion for new trial is concerned, is whether any error was committed at the trial which would require the granting of a new trial on the single issue as to the hour of the sale in question. The hours of sheriff’s sales were fixed by the judiciary act of 1799, “ between the hours of ten and three.” Cobb’s Digest, 509. The hours were later changed to between the hours of 10 a. m. and 4 p. m., by the act of 1821. Cobb’s Digest, 509 (note). They have so remained to the present time. While some changes have been made in the act of 1799, as to hours, advertisement, and the like, the present law as to substantial matters is the same as the original law. Civil Code, § 6060. In Brooks v. Rooney, 11 Ga. 423 (56 Am. D. 430), it was said: “The acts which make it the duty of the sheriff to advertise the sale of property in a particular way, and to sell between certain hours of the day, are merely directory to the officer. His neglect to observe these directions may subject him to a suit for damages', at the instance of the party injured by the neglect; but it will not affect the title of the purchaser, unless there be collusion between him and the sheriff.” It was also said, “the purchaser depends upon the judgment, the levy, and the deed; all other questions are between the parties to the judgment and the officer” (pp. 427-8). The question in that case was whether there must be recitals in a sheriff’s deed showing that the formalities of law respecting the manner and time of sheriff’s sale were actually complied with. It was held that such recitals were not necessary. The question as to the effect upon the
In Johnson v. Reese, 28 Ga. 353, 356 (73 Am. D. 757), the act of 1799 was under consideration, and it was said: “The first part of the section says, ‘No sales’ ‘shall be made’ ‘but on the' first Tuesday in each month, and between the hours of ten and three.’ . . This amounts t.o saying that the sheriff shall not have authority to sell at any other time.” The question before the court was as to the effect of failure to advertise in strict conformity to the statute. Hence what was said in that case on the subject of hours of sale was mere dictum. In Conley v. Redwine, 109 Ga. 640 (35 S. E. 92, 77 Am. St. R. 398), an irregularity in the advertisement was involved. There seems to be no authoritative ruling by this court on the question of the validity óf a sheriff’s sale made before or after the hours prescribed by statute. The code declares: “ The purchaser at judicial sales is not bound to look to the appropriation of the proceeds of the sale, nor to the returns made by the officer, nor is he required to see that the officer has complied fully with all those regulations prescribed in such cases. All such irregularities create questions and liabilities between the officer and parties interested in the sale. The innocent purchaser is bound only to see that the officer has competent authority to sell, and that he is apparently proceeding to sell under the prescribed forms.” - Civil Code (1910), § 6059. We think the phrases in this section, “ complied fully ” and “ apparently proceeding to sell under the prescribed forms,” are peculiarly significant. They appear for the first time in our law regulating judicial sales, in the Code of 1863. Prior to that time the courts were not agreed on the effect of a variation from prescribed regulations as to advertisement, hours of sale and the like. See Brooks v. Rooney, 11 Ga. 424 (supra). The codifiers were aware of the conflict of opinion, and no doubt desired to prescribe a safe and conservative rule for the future. The purchaser was not to be burdened with the duty to see that the officer had “ complied fully ” with all regulations as to the time and manner of sale. A variation would not vitiate which was not material and did not show the officer was wholly or substantially disregarding prescribed forms. Where the variation from the prescribed hour of sale was so slight that witnesses present seriously conflict with each other as to whether the sale
Complaint is made that the judge failed to charge that if one or more of the parcels were sold before ten o’clock, the sale would be void as to such parcels. Under the view we have taken, there was no error in such failure to charge.
In addition to this the petition attacked the entire sale of the three parcels. The charge submitted the issue made by the pleadings. It might be further said that if a charge on the subject was desired there should have been a request, and that the charge as given was a sound proposition, and the. complaint is that another sound proposition was not also given,
Tt is contended that the lands were sold for less than their value; that is, the prices were inadequate. There was no averment and no evidence of fraud or collusion. Inadequacy of price, though gross, will not be sufficient to set aside a sheriff’s sale, unless it appears there was fraud or collusion in the levy or the' sale. Palmour v. Roper, 119 Ga. 10 (5), 18 (45 S. E. 790); Gunn v. Slaughter, 83 Ga. 124 (3), 129 (9 S. E. 772); VanDyke v. Martin, 53 Ga. 221 (2).
Complaint is also made that the land was advertised for sale by the sheriff while an order was in force restraining a sale,' and that the sale was had on June 3, when the order dissolving the restraining order was dated June 2. The order restrained the
The record discloses no sufficient reason for reversing the judgment under review.
Judgment affirmed.