109 Ga. 553 | Ga. | 1900
Simmons filed an equitable petition against Nelms as sheriff of Fulton county, Sammons, and Cook, the latter of whom was plaintiff in a certain execution against Sammons, which had been levied on certain land of the defendant, which petitioner claimed he had purchased at the sale made by the sheriff. He prayed that the sheriff be enjoined from reselling the property and be required to specifically perform the contract of sale made by him to the petitioner, and that it be decreed that the sheriff should make a deed of conveyance of the land to the petitioner; also for general relief. On the hearing the evidence of the petitioner tended to establish the following facts: On the first Tuesday in April, 1899, Nelms, sheriff, by virtue of the fi. fa. described, after levy and due advertisement put up and exposed for sale certain parts of land lot 190 in the 17th district of Fulton county. At said sale petitioner was the highest and best bidder, and the same was knocked down to him for the sum of six hundred dollars. On the same day certain lands belonging to the petitioner, which had been levied on to satisfy certain fi.fas. against him, and which had been duly advertised, were also sold by the sheriff, and the Equitable Loan & Security Company became the purchaser of the land belonging to petitioner for the sum of $28,200, which said last-menffioned sum was paid to the sheriff, on the evening of the day of the sale, in the form of a certified check on a solvent bank. At the time of said payment, executions to the amount of about eighteen thousand dollars against petitioner were in the sheriff’s hands, claiming the fund arising from the sale of his property. Under these circumstances petitioner directed the sheriff to appropriate enough of the balance of the proceeds of the sale of his land to pay the amount of his bid for the Sammons property. This the sheriff failed to do, although there were several thousand dollars in his hands in excess of the amount of the executions against petitioner which had been lodged with said
While it was the undoubted right of the plaintiff in error to have appropriated to his bid any sum of money which remained in the hands of the sheriff in excess of the legal claims held by the sheriff against him, it does not appear as a matter of fact that any sum of money was in the hands of the sheriff belonging to the plaintiff in error on the day of the sale of the property for which he was the highest bidder, but that, as the purchase-price for the property of the plaintiff in error which was sold on the .same day, the sheriff accepted, after banking hours, a check on one of the banks in the city, and that he really did not receive the money until the following day. Nor does it satisfactorily appear from the evidence that, at the time the check for the purchase of petitioner’s property was cashed, there was any amount in excess of that required to pay off executions and liens against petitioner in the hands of the sheriff; but even if there had been, the arrangement which the petitioner alleges he made with the sheriff was not such a contract as would be decreed to be performed. The plaintiff in fi. fa. was directly interested in the sale and the prompt collection of the money represented in the petitioner’s bid, and had a right to require the bidder to comply with the obligations the law imposed on him, and it is not alleged that the plaintiff in fi. fa. consented or even knew of the alleged arrangement between the bidder and the sheriff. As was said by Chief Justice Jackson in the case of McLendon v. Harrell, 67 Ga. 440: “Cash, not credit, is that which the law requires them [sheriffs] to exact from every bidder, and no man’s note, or check, or draft, is, in the cold and impartial eye of justice, the equivalent of cash. Once relax the rule, and the gate to collusion and fraud
Judgment affirmed.