24 Ga. App. 402 | Ga. Ct. App. | 1919
1. “Whenever any officer of this State shall have taken possession of any property under process in any case of trover, and neither the plaintiff nor defendant shall replevy such property, and such property remains in the hands of such officer, and is of a perishable nature or liable to deterioration from keeping, or there is expense attending the keeping of the same, the same may be sold under the provisions of section 6068 of the code.” Civil Code (1910), § 5153; Glisson v. Heggie, 105 Ga. 30 (31 S. E. 118); Our Bank v. Corry, 145 Ga. 385 (89 S. E. 365); Phillips v. Taber, 83 Ga. 565 (10 S. E. 270). Under the provisions of section 6069 of the code, if the property be live stock, it may be sold as therein provided after tliree-days notice. Where a sale is advertised on December 25 to take place on December 27, there is a failure to comply with the legal requirement governing the sale; since where a number of days is prescribed for the exercise of any privilege or the discharge of any duty, only the first or last day shall be counted. Political Code (1910), § 4, par. 8; English v. Ozburn, 59 Ga. 392; Rusk v. Hill, 117 Ga. 722, 726 (45 S. E. 42).
9 While it is true that a purchaser of property at a void sale acquires no title thereto (Kirkland v. Gaskins, 20 Ga. App. 235, 92 S. E. 965; Bacon v. Hanesley, 22 Ga. App. 704, 97 S. E. 101), the mere fact that the sheriff had not advertised a sale of personal property had under the provisions of sections 5153, 6068, and 6069 of the Civil Code (1910), for the full three days as therein provided, would not of itself render the sale void. The purchaser at a sheriff’s sale depends upon the “judgment, the levy, and the deed,” all other questions being between parties to the judgment and the officer; it being sufficient for the purchaser that the sheriff had obtained authority to sell and had executed to him a title. The provisions of law governing the advertisement of the property for a particular time or in a particular way are merely directory to the sheriff, and any such neglect on his part may subject him to a suit for damages at the instance of the party injured, but does not affect the title of the purchaser unless there was actual fault on the purchaser’s part, such as collusion between him and the sheriff. Brooks v. Rooney, 11 Ga. 423 (56 Am. D. 430); Civil Code (1910), § 6059; Hendrick v. Davis, 27 Ga. 167 (73 Am. D. 726); Solomon v. Peters, 37 Ga. 251, 256 (92 Am. D. 69); Wallace v. Trustees, 52 Ga. 165, 166; Jeffries v. Bartlett, 75 Ga. 230; Conley v. Redwine, 109 Ga. 640, 644 (35 S. E. 92, 77 Am. St. R. 398). Even the fact that the purchaser was put upon notice that such a merely directory duty of the officer had not been complied with would not, in the absence of fraud or collusion on the part of the purchaser, render the sale void and thus impair the title so acquired. Johnson v. Reese, 28 Ga. 353, 355 (73 Am. D. 757).
3. It being undisputed that the plaintiff in this case had authorized the sheriff to notify the defendant of the plaintiff’s intention to apply for leave to sell, this was equivalent to a permission for the sheriff to proceed in the plaintiff’s name in obtaining such an order, and it therefore becomes unnecessary in this case to decide whether in such
5. The court did not err, however, in refusing to allow the defendant’s claim for damages by way of recoupment, whereby the defendant sought to recover for alleged malicious use of the present legal process. There are three essential elements which must appear before one can recover for malicious use of legal process: (1) malice; (2) want of probable cause; and (3) that the proceeding complained of had terminated in favor of the defendant therein before suit for damages based upon it was brought. Thus, where a plaintiff had instituted a bail-trover action against a defendant, the defendant could not in the same case, by way of recoupment, recover damages for such alleged malicious use of the legal process, since the proceeding complained of had not terminated in the defendant’s favor. Fender v. Ramsey, 131 Ga. 440 ( 62 S. E. 527). In point of fact, the record as now presented precludes the possibility of even a future recovery on such a ground, since the judgment in favor of the plaintiff in the trover proceeding, even though erroneous, is nevertheless sufficient to establish conclusively the existence of such a probable cause as prevents the maintenance of such an action. Short v. Spragins, 104 Ga. 628 (30 S. E. 810); McElreath v. Gross, 23 Ga. App. 287 (98 S. E. 190).
Judgment reversed.