131 Ga. 347 | Ga. | 1908
(After stating the facts.)
Why the sheriff should have deemed it necessary to make a second levy we can not understand. However, judging from the language of the second entry of levy, he seems to have been under the impression that as the progress of the former levy had, after advertisement thereunder, been arrested by an affidavit of illegality until the time fixed by the advertisement for the sale had passed, the first levy had become stale or dormant and needed to be revived, or, as he termed it, "renewed." It is obvious, though, that the first levy was in full force and effect when the second was made, as it never had been dismissed, and the second levy- can not be considered as being equivalent to a dismissal of the former one, for it was clearly intended to be in aid of the first. The most that can be claimed as to the effect of the second entry of levy is that it is explanatory of the first, and that the two entries should be construed together. There is no inconsistency in the descriptions of the property levied upon in these two entries of levy. Instead of there being such inconsistency, the description contained in the. first is, by reference thereto, in the second, made a part of the description in the latter. The second levy describes the land embraced in the first levy as "the ‘Stovall place’ of sixteen hundred and sixty-six and three fourths ¿eres,” that is, that the land described in the original levy as that tract of land in Baldwin county on which Nathan Hawkins lived at the time of his death is the tract called the "Stovall place." This simply somewhat enlarges the description contained in the first levy, affording an additional means by which to locate and identify the land levied upon. The same may be said in reference to the substitution in the second levy of the words "seventeen hundred acres more or less" for the words "sixteen hundred and sixty-six and three fourths acres," which appeared in the first entry. The clause in the second entry of levy, “excepting" from the levy upon the entire tract of seventeen hundred acres, more or less, "the widow’s dower therein of Nathan Hawkins’ widow," does not necessarily conflict with the expression, “subject to the widow’s dower in seven hundred and one acres," vhich appears in the first levy. "The widow’s dower” in the land levied upon was the widow’s life-estate in that portion of such land
Counsel for plaintiffs in error cite McAfee v. Arline, 83 Ga. 645 (10 S. E. 441), and Wells v. Dillard, 93 Ga. 682 (20 S. E. 263), to support their contention that the reversion in the dower land was not sold. In the first of these cases it was held that “The clause, in a deed, ‘except the dower of fifty acres and fully described in deed given to Corbin Banking Co.; the said tract or parcel of land hereby conveyed ' . . contains all the dwellings and gin-house except the old original dwelling-house/ is strictly an exception.” There the grantor excepted from his conveyance, not the widow’s dower in the tract conveyed, nor the dower in fifty acres of such tract, but he described the land excepted as “the dower of fifty acres,” which was the same as if he had said, “except the dower land of fifty acres.” The word “dower” there was descriptive of land, and not of an interest in land. The second case cited is on the same line. There an administrator conveyed to the widow of the intestate “lot 154, in 31st dist. Marion County, except the widow’s dower and ten acres off southeast comer,” and the deed recited that the widow “bought all of said lot except the widow’s dower and ten acres off of the southeast corner of said lot.” The widow at the time of the sale was in possession of a definite -portion of the lot, which portion had been previously laid off as her dower; and it was held, that “the proper construction of the conveyance is, that both this portion and the ten acres in the southeast corner were wholly excepted from the sale made by the administrator, the phrase ‘widow’s dower/ as used in the conveyance, meaning, not the legal right of dower, but the parcel of land itself over which that right had been asserted and exercised.” Had the description in the conveyance been, “all of lot 154, in the 31st dist. of Marion county, except the widow’s dower therein,” and if the deed had recited that the widow “bought all of said lot except the widow’s dower therein, we apprehend that the ruling as to the effect of the deed would have been different. Eor the widow’s dower in a described tract of land must mean either a life-estate in the whole of such tract, or such an estate in a designate#
The sheriff’s advertisement, introduced by plaintiffs, was not ""void because of indefinite and insufficient description of the lands” therein mentioned. The description, ""all that tract of land of seventeen hundred acres, more or less, known as the Nathan Hawkins home or "Stovall place,’ adjoining lands of Mrs. Little, Howell Rose, Mrs. Kenan, and others, except the widow’s dower or life-estate in seven hundred and one acres thereof including the dwelling-house and appurtenances,” was clearly sufficient for prospective purchasers to locate and identify the land to be sold, and it also clearly indicated that the whole interest in the entire tract of about seventeen hundred acres was to be sold, except the life-estate of the widow in the dower lands. The language, “except the widow’s dower or life-estate in seven hundred and one acres,” plainly shows that it was the life-estate of the widow, in that portion of the tract set apart as her dower, which was excepted from the sale to be had under the levy, and not the dower tract itself. This advertisement was certainly perfectly consistent with the first levy, and it was not at all inconsistent with the second one, when it is construed, as it should be, in connection with the first. The sheriff’s deed followed the language of this advertisement, and therefore there was no conflict between the description in the deed and the description in the advertisement, and none between the description in the deed and those in the levies. The fact, to which counsel for plaintiffs in error call attention in their brief, that the dower tract actually consisted of only 556 acres, instead of 701 acres, as indicated in the levies, the advertisement and the deed, is immaterial; for, as we have shown, it was not the dower tract which was excepted in these writings, but the widow’s life-estate therein; and if she in fact only had a dower, or life-estate, in 556 acres, then it was only this interest which was excepted. Even if it could be held that, under the levies, the advertisement, and the deed, a life-interest in the widow in 701 acres of the land was excepted, the result, in this case, would be the same, as after her
The sheriff’s advertisements of sale, introduced by defendants, have not been considered, for the simple and sufficient reason that the land was not sold under these advertisements or either of them. Bach of them was functus officio, by lapse of time, when the land was finally exposed for sale by the sheriff and sold by him. The sale took place on the first Tuesday in February, 1873, in pursuance of an advertisement that it would be sold ‘on that day, dated December 30, 1872. No bidder, or prospective bidder,, at that sale was concerned in an advertisement dated April 4,. 1871, giving notice that on the first Tuesday in May thereafter certain property would be sold by the sheriff, nor in an advertisement dated December 1, 1871, of property to be sold on the first Tuesday in-January, 1872, although each of these advertisements may have been intended to be based upon the identical levy under which the sale advertised for the first Tuesday in February, 1873, was to take place. The two advertisements introduced by defendants were wholly irrelevant and immaterial.
We'think it necessarily follows from these two decisions that the court rightly excluded the parol evidence offered to contradict the sheriff’s return of the sale under the execution and his deed made in pursuance thereof. Under the first decision, third parties
There being no error in any of the rulings complained of, the judgment of the court below is
Affirmed.