1. The holder of a note secured by deed to land sued the note to judgmеnt, and reconveyed the land for the purpose of levy and salе. Thereafter the sheriff, having complied with all legal requirements, sold the land at “public outcry” to the aforesaid creditor, executеd a sheriff’s deed for the purpose of making title in the purchaser, and delivered the deed to the attorney who represented the сreditor in procuring the judgment and causing the sale, “with instructions not to deliver it to Mrs. Wolpert [the purchaser] until all costs had been paid by her.” At the same time the attorney signed and delivered to the sheriff a receipt as1 follows: “Received of E. E. Reagin, sheriff, the sum of four thousand, eight hundred and forty-eight & 13/100 dollars ($4,848.13), in the value of land to plaintiff by sheriff’s deed and as а credit on fl. fa., after payment of all costs and expenses. This December 3, 1924. O. J. Coogler, Plaintiff’s Atty.” _ On the same day the sheriff made entry on the execution of the sale of the property to Mrs. Wolpert, she being the highest and best bidder, “the receipt of which is hereby acknowledged.” Held, that the acts of the sheriff above stated amounted to an elеction by the sheriff to treat the 'sale as'final, and preclude a rеsale under the Civil Code (1910), § 6071.
2. “A grantor can not deliver a deed to the grantee or his attorney as an escrow. Such a delivery would be equivаlent to adding a parol condition to the instrument. To make the deed an escrow, it should be delivered to a third person, to be by him deliverеd to the grantee upon the performance of any required сondition.” Duncan v. Pope, 47 Ga. 445 (4), and cit.; and see Anderson v. Goodwin, 125 Ga. 663 (
3. The ruling last stated is in accord with Dixon v. Bristol Savings Bank, 102 Ga. 461 (
4. Under the facts shown, Mrs. Wolpert, the purchaser of the lаnd at' sheriff’s sale, was the owner of the land at the time of her death, аnd not the owner of the note formerly held, the amount of her bid having beеn accepted and receipted for as payment on the execution.
5. The defendant, Mrs. Morgan, claims title to the land on the grоund that, under item 4 of the will, had the testatrix died holding- the note and security deed these would have passed to the former; and that the land should takе the place of the note and security. This claim does not treat the sheriff’s sale as other than final.
6. “If the testator exchanges the property bequeathed for other of the like character, or merely changes the investment of a fund bequeathed, the
7. Under the facts shown in the record, the question of unauthorized purchase 'of land at sheriff’s sale by an attorney for his client is not made. None of the parties seek to treat the purchase at sheriff’s sale as void. On the contrary, all parties treat the bid for the property, as well as the sаle and sheriff’s deed, as valid. If there ever was any such question, the aсt of the attorney has. been ratified.
S. The foregoing rulings control the еase, and require an affirmance of the judgment.
9. No question is made in the record concerning the mental capacity of the testatrix to accept delivery of the deed, though discussed in the brief of counsel for plaintiff in error.
Escrows, 21 C. J. p. 873, n. 96; p. 874, n. 6; p. 877, n. 26.
Executions, 23 C. J. p. 804, n. 79 New; p. 807, n. 46.
Wills, 40 Cyc. p. 1919, n. 68; p. 1921, n. 80.
Judgment affirmed.