Rogers v. Smith, 146 Ga. 373

146 Ga. 373 | Ga. | 1917

Gilbert, J.

(After stating the foregoing facts.) Hamilton, the purchaser of the two pieces of land at the two sales, was- not the vendee in either of the security deeds. He was a stranger, not connected with the grantee in the transactions in any way, so far as the record discloses. He paid the purchase-money in accordance with the agreement at the public sale, and went into possession without fraud, and without notice of any irregularity or illegality in the proceedings by virtue of which the sheriff sold, or undertook to sell. Mrs. Hamilton, now Mrs. Talbert, defended, claiming lot 51 by virtue of prescription under a void sheriff’s deed as color of title based upon possession for more than seven years; and lot 478 under a valid sheriff’s deed, and by prescription.

1. As to lot number 478, the title of Mrs. Hamilton, now Mrs. Talbert, was ample without the aid of prescription; and therefore the court did not err in directing a verdict for the defendants as to ihat lot. The judgment of the superior court, the execution issued thereon, and the sale of the lot by virtue thereof were-regular and in compliance with law. The purchaser received a valid deed to the land, without notice of any -secret equity of Mrs. Rogers, who had knowledge of the sale prior thereto, but allowed the same to proceed without disclosing her equity, and only filing her deed for record more than a year after the sale of the lot by the sheriff and the record of the sheriff’s deed.

2. The judgment of the justice’s court was void. The principal sum sued for exceeded the jurisdiction of the court. The execution issued on said judgment and the sale thereunder were void, and no title passed by virtue thereof. Hamilton v. Rogers, 126 Ga. 27 (54 S. E. 926). The purchaser at such a void sale has two remedies. He may be subrogated to the rights of the vendee in the security deed, or he may rely upon prescription; and if he has in good faith been in possession of the land under such color of title for seven years or more, he has a good title by prescription. Powell on Actions for Land, 523, § 392; Beverly v. Burke, 9 Ga. 440 (54 Am. D. 351); Gittens v. Lowry, 15 Ga. 336; Burkhalter v. Edwards, 16 Ga. 593 (60 Am. D. 744); Hester v. Coats, 22 Ga. 56; Millen v. Stines, 81 Ga. 655 (8 S. E. 315); Street v. Collier, 118 Ga. 470 (45 S. E. 294); McLendon v. Shumate, 128 Ga. 526, 531 (57 S. E. 886); Floyd v. Ricketson, 129 Ga. 668 (59 S. E. 909) ; Harris v. Black, 143 Ga. 497, 501 (85 S. E. 742); Winn v. Bridges, 144 Ga. 497 (87 S. E. 665).

It is contended by counsel for Mrs. Rogers that “every qriestion in this case was determined upon these identical fi. fas., and between the same parties, as to another piece of land,” in the case of Hamilton v. Rogers, supra. The question of prescription was not involved in that ease; and considering only the-.issues there made, the court ruled that the purchaser was subrogated to the rights of the holder of the security deed.

3. The pleadings and evidence raised the question of prescription as to lot number 51; and since we have held that the purchaser at such a void sale could prescribe on the void deed obtained from the sheriff, it follows that it was erroneous for the court to refuse to submit that issue to the jury, and for this reason it was error for the court to overrule the motion for a new trial.

The judgment directing a verdict in favor of the defendants as to lot 478 is affirmed; the judgment refusing a new trial as to lot 51 is Reversed.

All the Justices concur.