Humphrey v. McGill

59 Ga. 649 | Ga. | 1877

Warner, Chief Justice.

This was a bill filed by the complainant against the defendants to set aside a sheriffs sale of a lot of land in Decatur county, on the allegations contained therein. On the trial of the case, the jury, under the charge of the court, found a verdict in favor of the defendants. • The complainant made a motion for a new trial, on the several grounds therein stated, which was overruled by the court, and the complainant excepted.

1. The evidence in regard to the facts alleged in the complainant’s bill, upon which his claim to equitable relief was based, is conflicting, and the main controlling question in the case is, whether a plaintiff in execution, who purchases the property levied on at a sheriff’s sale, stands upon the same footing as any other innocent purchaser of property at sheriff’s sales as to the irregularities of that officer in advertising the sale, giving notice, etc., and is only bound to see that the sheriff has competent authority to sell, and that he is apparently proceeding to sell under the prescribed forms. The court charged the jury that if they believed, from the evidence, that the tenant in possession was not notified according to law, or the advertisement was not published in a gazette, as required by law, for four weeks prior to the sale, that would not affect the purchaser who had no notice of it; but if the plaintiff in fi. fa., the purchaser of this lot of land, did have notice (and they must determine this from the evidence) before the sale took place, that sale would be illegal, and could be set aside. There was no error in this charge of the court, in view of the evidence. Solomon vs. Peters, 37th Ga. Rep., 251.

2. There was no error in the charge of the court in relation to the re-sale of the property on the same day, on the failure of the bidder therefor to comply with his bid without re-advertising it, on tlie statement of facts contained in the record. Sanders vs. Bell, executor, 56 Ga. Rep., 442.

3. The evidence being conflicting as to the facts upon which the complainant sought to recover, and the jury having thought proper to believe the defendants’ witnesses, as it was their province to do, there is sufficient evidence to sustain the verdict, and therefore it is not contrary to law. Whether the complainant was endeavoring to purchase all three of the lots levied on at the sale through his agent, Mathews, at a comparatively nominal price, to the prejudice of the rights of his creditors, we do not know. Two of the lots were bid off by Mathews, his agent and tenant, but he failed to get the third, which is the subject matter of the present suit.

Let the judgment of the court below be affirmed.