O'Kelley v. Gholston

89 Ga. 1 | Ga. | 1892

Boynton-, Judge.

A sheriff or other officer, in making an entry of a levy on land, must give a plain and specific description thereof, and also state the interest of the defendant therein. This should be repeated in the advertisement. The description must be sufficiently distinct and elaborate to enable bidders at the sale to identify the premises by the boundary, number or name, or some other pointer contained in the levy and advertisement. Good faith to the defendant in execution and justice to the bidder, as well as the law, require this degree of care and particularity on the part of the officer. A failure in this respect cannot he cured by giving an additional description in the deed. The officer must first exercise such care as will authorize him to sell, before he can convey. And if the levy be void, for uncertainty or deficiency in the description of the property, he would' then be without authority to sell or convey. For these reasons, parties before purchasing at judicial sales should be diligent in ascertaining whether the officer has authority to sell, and whether he has conformed to the requirements of the law in detail with such care as would enable him to make a legal sale. The entry ■ of levy on executions in this case does not locate or describe the land, either by number of lot, or district or county, or by giving the names of adjacent land-owners. Such a levy is too vague and uncertain in its description to authorize a sale, and the sale thereunder passed no title as a sheriff’s sale merely. Code, §§3640, 3647; 10 Ga. 74; 62 Ga. 447; 70 Ga. 756; 72 Ga. 475. But if the defendant in execution was present at the sale and had mental capacity to understand that his land was being sold and to contract for the sale of land, and did contract or consent to the sale in such manner as would make the sheriff’s sale in effect his sale, and he received the benefit of the sale by the application of the proceeds to valid judgments against him, this would give the purchaser such an equity as would estop his administrator, as W'ell as himself. 63 Ga. 32; 78 Ga. 54.

. 2. The plaintiff’ in the coui’t below instituted an equitable proceeding to have the deed made by the sheriff’ cancelled. Before obtaining the relief sought, he should offer to do equity. If the purchaser paid the amount for which the land was bid off’ at the sheriff’s sale, and it was applied to valid subsisting judgments against plaintiff’s intestate, whether belonging to the purchaser or others, to the extent valid judgments against him were extinguished, his intestate was benefited, and if the deed be cancelled, the purchaser correspondingly injured. Therefore, before a recovery is had, he should pay, or tender, that amount with interest thereon, The equivalent of this may be effected by offsetting any mesne profits realized by the purchaser against that amount; or, if in adjusting the equities a balance is found in favor of the purchaser after he has accounted for mesne profits, by providing in tbe decree for tbe sale of tbe land and tbe payment of sucb balance out of tbe proceeds of tbe sale.

Deterring bidders at a sberifFs sale for tbe benefit of tbe defendant, and witb bis consent, would not vitiate the sale as between him and tbe purchaser. But this general rule would not control if tbe defendant was of weak mind, and tbe purchaser, by deceitful promises 'or other artful means, took a fraudulent advantage of bis condition and surroundings, and thereby obtained tbe land for much less than its then market value.

Judgment granting new trial affirmed.