164 Ga. 858 | Ga. | 1927
Lead Opinion
1. If an entire tract of land containing sixty acres on winch, there is a residence is capable of subdivision into smaller tracts, and if the fair market value of the land is $30 to $40 per acre, a levy on the land as one entire tract under a justice’s court fi. fa., which with principal and accumulated interest amounts to $200, is excessive and a sale made in pursuance of such levy is void (Slark v. Cummings, 127 Ga. 107 (2), 56 S. E. 130; Williams v. Forman, 158 Ga. 89 (5), 123 S. E. 20; Carter v. Moody, 160 Ga. 849, 129 S. E. 163; Stowe v. Birmingham Trust &c. Co., 161 Ga. 403, 131 S. E. 44), and would not afford the sheriff authority to dispossess the defendant in fi. fa.
2. If a defendant in fi. fa. owns an entire tract of land containing 60 acres on which he resides, 55 acres of which are cleared suitably for cultivation, and the land is not the same land which the sheriff has previously sold under a fi. fa. against the defendant, the sheriff would have no right to dispossess the defendant in fi. fa. of his property on which he resides and place the purchaser at the sheriff’s sale in possession thereof.
3. Whether or not the land on which the defendant resided was the same as that included in .the sale, if the sheriff, for reasons indicated in either of the preceding notes, was unauthorized to dispossess the defendant in fi. fa., but nevertheless did so, he would be guilty of a trespass for which he would be liable to the defendant, and should be required to pay adequate damages in an appropriate action therefor. Bethune v. Wilkins, 8 Ga. 118.
4. Equity will not interfere to restrain a trespass, unless the injury is irreparable in damages, or the trespasser is insolvent, or there exist other circumstances which, in the discretion of the court, render the interposition of this writ necessary and proper, among which shall be the avoidance of circuity and multiplicity of actions. Civil Code (1910), § 5493. In Paramore v. Persons, 57 Ga. 473, it was stated that the suit had (as is true in the present ease) “but a single object, which was to enjoin the defendant from entering into possession of the land, and dispossessing the complainants.” A judgment overruling a motion to dismiss the bill “for want of equity” was reversed, the court stating in the opinion: “The weight of decisions by this court is against interfering by injunction to restrain a mere trespass: 5 Georgia Reports, 580; 8 Ibid. 119; 11 Ibid. 294; 10 Ibid. 576; 32 Ibid. 241; 22 Ibid. 165; 40 Ibid. 293. See Code, section 3219.” The code section cited in the opinion was the same as § 5493, quoted above. If the bill had complained that the officer was also proceeding to put the purchaser in possession, and that it would require a suit for damages against the sheriff and a separate suit in ejectment to recover the land, and that injunction was sought to prevent a multiplicity of actions, the decision probably would have been different. In this view the language quoted
5. In the light of the ruling just stated, the allegations of the petition in this case show that the action is a suit against the sheriff alone, to enjoin an unlawful eviction — -a typical trespass, without any allegations of irreparable injury.
(a) The facts differ from Manning v. Lacey, 97 Ga. 384 (23 S. E. 845), where the suit was to enjoin a sheriff “from making the purchaser a deed to the property and from putting the latter in possession.”
(5) The case also differs from Stokes v. Weems, 72 Ga. 179, which was a suit for cancellation and other similar relief, and incidentally for injunction.
(c) The case also differs from Justice v. Aikin, 104 Ga. 714 (30 S. E. 941), in which insolvency of one of the defendants was alleged in the petition, and held to be ground for injunctive relief.
6. Under application of the foregoing principles the judge did not err in refusing an injunction.
Injunctions, 32 C. J. p. 129, n. 32; p. 130, n. 36; p. 132, n. 65; p. 133, n. 66; p. 136, n. 85, 86; p. 138, n. 96, 99; p. 139, n. 10; p. 329, n. 27.
Judicial Sales, 35 C. J. p. 11, n. 56; p. 37, n. 73, 76, 91; p. 84, n. 9 New.
Trespass, 38 Cyc. p. 1070, 'n. 95.
Judgment affirmed.
Dissenting Opinion
I do not dissent from the rule stated in the fourth headnote, that equity will not interfere to restrain a trespass, unless the injury is irreparable in damages, or the trespasser is insolvent, or there exist other circumstances which, in the discretion of the court, render the interposition of this writ necessary and proper. The rule that equity will not interfere to restrain a trespass has been frequently recognized by this court; büt I am of the opinion that the facts of this case bring it within the stated exceptions to the general rule, rather than within the rule as broadly stated. I am authorized by Chief Justice Russell to say that he concurs in this dissent.