Hardin v. Kelly
195 Ga. 10
| Ga. | 1942

A sheriff's deed must follow the levy. Where the entry of levy gives the boundary lines of exactly 101 1/4 acres of land, and fixes the west boundary as other lands owned by the defendant in fi. fa., and the deed contains the same description, except that it states that the tract is bounded on the southwest by the land of the defendant in fi. fa., there is a material difference, and the deed is void.

No. 14341. NOVEMBER 12, 1942.
The petition of Miss Alene Hardin against E. C. Kelly and C. H. Pope alleged as follows: On September 6, 1932, C. L. Bartlett was the owner in fee simple and in possession of a parcel of land containing 303 3/4 acres. On January 31, 1936, C. L. Bartlett conveyed to the petitioner all of said land. On August 9, 1932, the sheriff of the county levied upon 101 1/4 acres of said land by virtue of a tax fi. fa. against C. L. Bartlett, the entry of levy, written upon a separate paper and attached to three fi. fas. against C. L. Bartlett, being as follows: "Under and by virtue of the attached tax fi. fa. I have this day levied upon the following property, to wit: one hundred and one and a fourth (101 1/4) acres of land in Blackwell's District, Jasper County, Ga., bounded on the northeast and northwest by lands of E. C. Kelly, southeast by the lands of J. T. Benton, and west by other lands of C. L. Bartlett. Levied on as the property of C. L. Bartlett, to satisfy tax fi. fas. issued by E. N. Elder, T. C. of Jasper County, Ga., in favor of State of Georgia and County of Jasper against C. L. Bartlett. This 9th day of August, 1932. W. F. Persons, Sheriff of Jasper County, Ga." The advertisement of sale described the land by giving the same boundaries as those contained in the levy, except that while the levy stated that it was bounded on the west by other lands of C. L. Bartlett, the advertisement stated that it was bounded on the southwest by other lands of C. L. Bartlett. On September 6, 1932, the sheriff sold to C. H. Pope the land so advertised, executing a sheriff's deed to the purchaser. Three separate tax fi. fas., a copy of the levy, and the advertisement were made a part of and recorded with the sheriff's deed, which contained the same description of the land as that in the advertisement, giving its boundaries as follows: on the northwest and northeast by lands of E. C. Kelly, on the southeast by lands of J. T. Benton, and on the southwest by other lands of C. L. Bartlett. On September 12, 1932, the purchaser Pope conveyed the land by quitclaim deed to the defendant Kelly, who immediately entered into possession and has since retained possession. He has cut and removed valuable timber therefrom, and has received the rents and profits, amounting to several hundred dollars in excess of the amount paid by him for taxes. The plaintiff prayed for accounting, cancellation of the sheriff's deed to Pope and the quitclaim deed from Pope to Kelly; *Page 12 that title to the land be decreed in the plaintiff; for injunction, and for general relief.

The defendants denied the material averments of the petition. Upon the trial the tax executions, the levy, the advertisement, the sheriff's deed and the quitclaim deed were introduced in evidence, and testimony also was introduced. The jury returned a verdict in favor of the defendants. A motion for new trial was overruled, and the plaintiff excepted. The controlling question is the validity or invalidity of the sheriff's deed. If valid, the verdict was demanded. If invalid, a verdict for the defendant was unauthorized. The first ground of assault upon the sheriff's deed is that the description of the land does not follow the description in the levy. The descriptions are identical in all respects, save alone the boundary line between this tract and other adjoining land of the defendant in fi. fa., C. L. Bartlett. The levy fixes this boundary as the west side, whereas the deed fixes it as the southwest side. The exact acreage is stated in both the entry of levy and the deed, and with the other boundaries given the sheriff might have located the line through the defendant's land by marking the same or fixing its distance from the opposite side of the tract; but he chose to rely entirely upon the compass in fixing this line both in the levy and in the deed. There is no data in either that may be used to aid in fixing this line aside from the compass. Therefore, when the entry of levy states that the land levied upon is bounded on the west by other lands of C. L. Bartlett, no variation from an exact west as fixed by the compass can be made; and where the deed and the advertisement fix the side of this tract adjoining other lands of C. L. Bartlett as the southwest side, such description can not be construed to mean the west side. The sheriff chose to rely entirely upon the compass, and by the compass his acts in this respect must stand or fall. It is obvious therefore that the description in the deed does not follow that contained in the levy. For the deed to embrace the acreage called for in both the entry of levy and the deed, it must extend the northwest line and shorten the southeast line fixed by the entry of levy; and if this is done, there would be land embraced in the deed's description which was not embraced *Page 13 in the levy, and hence was not seized by the sheriff. For a sheriff's deed to be valid, it must follow the levy and must convey only lands described in the levy. Brown v. Moughon,70 Ga. 756; Elwell v. New England Mortgage Security Co.,101 Ga. 496 (28 S.E. 833); Thompson v. Tasker, 134 Ga. 80 (2) (67 S.E. 446); Craddock-Terry Co. v. Lazarus, 180 Ga. 552 (179 S.E. 730). While it is true that the greater portion of the land described in the deed was also embraced in the levy, yet it is equally true that there is embraced in the deed some land that was not embraced in the levy; and in this respect this case is similar to Thompson v. Tasker, supra. There both the levy and the deed embraced lot 82, but the deed embraced other lots; and it was held that the deed was invalid. In 33 C. J. S. 561, § 277, it is said: "A deed purporting to convey property other than that ordered sold by the writ is void." This rule is not rendered inapplicable to the facts in the instant case by the further statement there made that: "But where the identity of the land is certain, a variance between the description in the deed and that in the levy, return, or certificate of sale is immaterial." The identity of the land here involved is not certain. It can be made certain only when the line between this tract and other lands of C. L. Bartlett is made certain. Its identity as fixed by the levy is materially changed when the description contained in the deed is applied. For the reasons stated, the sheriff's deed is void; and being a cloud upon the plaintiff's title, it should be canceled. Kelly's title, being dependent upon the validity of the sheriff's deed, must meet the same fate as that deed. The evidence demands a verdict for the plaintiff, except on the question of accounting, and that matter should be determined by the jury.

Judgment reversed. All the Justices concur.