No. 36 | Ga. | Mar 15, 1857
By the Court.
delivering the opinion.
Ought the Court below to have dissolved this injunction ?
Not if the plaintiff was entitled to have the Sheriff’s sale set aside, and the Sheriff’s deed delivered up to be cancelled. Was the plaintiff entitled to this relief?
We think so, taking the hill to be true; and we have to take the bill to be true, as most of its important allegations are, either not denied at all by the answer, or are denied only on hearsay and belief.
Taking the bill to be true, the plaintiff had six children under fifteen years of age; and he owned eighty acres of land; such land as might by the exempting acts of 1841 and 1843, be exempt from sale for the plaintiff’s debts.
If all this is true, the land was exempt from sale for the plaintiff’s debts, for the exempting Act of 1841, says: “That every white citizen of this State, male or female, being the head of a family, shall be entitled to own, hold and possess, free and exempt from levy and sale by virtue of any judgment,” &c., “twenty acres of land, and the additional sum of five acres for each of his or her children under the age of fifteen.”
And the Act of 1843, amendatory of this, raises the twenty acres of this to fifty, but does not affect this, as to the five acre parcels. Cobb’s Dig. 389, 390.
The plaintiff having six children, and no part of the eighty acres being such as falls within any of the exceptions of
A Sheriff can have no authority to sell under a judgment, what is by law specifically exempted from sale under that judgment by him.
Therefore, this Sheriff could have had no authority to sell this eighty acres of land. But he did sell it. Therefore, the sale ought to be set aside, and the deed made by him can-celled.
This is the relief to which the plaintiff is entitled. No other relief is adequate. Manifestly, a suit against the Sheriff for a trespass and damages, would be a poor compensation for the loss of home, to a man with a wife and six children, the oldest not fifteen.
The part of the exemption Act of 1841, that requires a survey, &c. to be made^of the lot that is to be exempt from sale, applies not to such a case as the present, but to cases in which, the “ head of the family” owns “ a greater quantity of land than that exempted from levy and sale” by the part of the Act already referred to.
We think therefore, that the Court erred in dissolving the injunction.
Judgment reversed.