138 Ga. 690 | Ga. | 1912
(After stating the foregoing facts.) These cases have been considered and decided together, inasmuch as the facts relating to the main question in each case are the same.
Now, coming to. the consideration of the property which the plaintiff seeks to recover in the suit against Farlinger, it is apparent that Farlinger relies upon a title infected with a weakness that is fatal to it and renders it void. The sheriff’s deed to Alexander and Wallace, through whom Farlinger derives title, was void and ineffectual to convey title, on the ground that the levy was excessive, which, as a fact, the judge, to whom the entire case was submitted without the intervention of a jury, was authorized by the evidence to find, and that the sheriff did not offer to sell by lots, although the tract of land had already been subdivided into lots, but sold the tract in mass. It is apparent that the sale of all of these lots was not necessary to sátisfy the fi. fa., and two of the lots, 13 and 14, were not even contiguous to the tract of land containing lots 5 to 12, but were on the opposite side of the street designated as Rolling Mill Street. In the case of Forbes v. Hall, 102 Ga. 47 (28 S. E. 915, 66 Am. St. R. 152), where the plaintiff, Mrs. Forbes, filed an equitable petition praying an injunction against Hall, the purchaser at a sheriff’s sale, and against the sheriff, to restrain them from turning her out of possession of certain lots that had been sold at sheriff’s sale, and to set aside the sale on the ground that the levy was excessive and the sale thereunder void, it appears that two city lots, with three dwelling-houses thereon, were sold in bulk by the sheriff, and that the value of the lots was greatly in excess of the amount of the execution under which the-lots were sold. In the course of the decision it
From what we have said above, Wallace and Alexander obtained no title at the sheriff’s sale and could transmit none to the grantees in the deeds of conveyance of this property which they subsequently executed.
Nor do we think that the.plaintiff is- estopped by reason of the fact that the proceeds of the void sale, after paying to Mrs. E. M. Edwardy, the dowress, one half thereof, were paid into court for the purpose of satisfying the claims of creditors of E. M. Edwardy. It is true, as recited in the statement of facts, that E. M. Edwardy’s estate was “heavily in debt, and in fact afterwards proved to be insolvent.” There was a legal method by which the
Counsel for plaintiffs in error stress their contention that even if the sales of the property involved in these two suits were void, the purchasers, and especially their successors- in title, obtained, if not a legal title, an equitable title, which should not now be disturbed. In addition to the grounds of estoppel advanced, and which have been considered above, it is urged that as these defendants and their predecessors in title have an equitable title to the property in dispute, the plaintiff, after the long lapse of time, is estopped by her failure more promptly to institute proceedings to set aside the sales alleged to be void; that she has been guilty of such laches in this respect as will effectually bar her right of recovery. Among the authorities cited by counsel to support this position, and the decision most nearly in point, is that of the Woodstock Iron Co. v. Fullenwider, 87 Ala. 584 (6 So. 197, 13 Am. St. R. 73). There it appears that the widow of Hudson owned a life-estate in the lands of her deceased husband, based on her allotted right of dower, and that she purchased the reversionary estate at a sale of the lands made by the administrator of Hudson for the payment of decedent’s debts, on March 20, 1866, more
The case of the Woodstock Iron Co. v.Fullenwider was followed by the Supreme Court of Alabama in Lowery v. Davis and one other decision rendered by that court. But the doctrine was criticised and doubted in the later case of Robinson v. Pierce, 118 Ala. 273 (24 So. 984, 45 L. R. A. 66, 72 Am. St. R. 160), and Mr. Justice Head, who rendered the opinion for the court, referred to the doctrine announced in the Woodstock Iron Company case as “much criticised and doubtful, if not plainly erroneous.” And besides, it will be borne in mind that in this case the title attacked was void and not merely voidable, and the action was at law to recover possession of land.
From the agreed statement of facts in the present case it appears, that the dowress died in the month of January, 1887. Until that time the heirs of E. M. Edwardy had no right to possession of the lands which had been allotted to their mother as a dower; and after these lands had been illegally conveyed to another party, who held them adversely to the heirs after the death of the dowress, such of the heirs as attained their majority would have had seven years in which to bring suit to recover their interest in the lands, before prescriptive title would ripen in the adverse holders. One of the
. It follows from what we have said above, that the judgment of the court below is affirmed in the case of Richards et al. v. Edwardy and on the main bill of exceptions in the case of Farlinger v. Edwardy, and reversed on the cross-bill of exceptions in the latter case, with direction that the court below so modify its judgment in the last-named case as to conform to the ruling made in the last division of this opinion.