116 Ga. 332 | Ga. | 1902
Jack Hancock, sheriff of Crawford county, brought-suit against Mrs. Stroud, widow and executrix of J. W. Stroud,, making by his petition substantially the following case: In October, 1897, Napier Brothers foreclosed in the superior court of Pike-county a mortgage on personalty against A. O. Simmons, and petitioner as sheriff duly levied on the property in Crawford county.. Simmons filed an affidavit of illegality to the mortgage foreclosure,, and gave a bond for the forthcoming of the property, signed by himself as principal and J. W. Stroud as surety. On the trial of the issue formed on the affidavit, the illegality was dismissed and judgment was rendered in favor of Napier Brothers for damages. The property was then duly advertised for sale, in the paper in which the sheriff’s advertisements are published, and when the day of sale arrived the sheriff, during the legal hours and at the legal place of sale, called for the property, and it was not forthcoming. By reason of the breach of the forthcoming bond, petitioner was damaged in a named sum, for which he prayed judgment. To this petition the defendant filed a general demurrer, which was overruled. She also filed a plea, in which she averred that for want of sufficient information she was unable to either admit or deny the' allegations of the petition with reference to the foreclosure of the' mortgage and the filing and trial of the affidavit of illegality, hut-denied that any levy had ever been made upon the property described in the petition, and claimed that she, as executrix of her husband, had never been notified to produce the property at the-time and place of sale, and had no notice that J. W. Stroud had ever signed such a bond as the one sued on until after his death and long after the time when the property was advertised for sale. The sixth paragraph of the petition averred “that it was impossi-
To this plea the plaintiff demurred, on the ground that no suffi
The only question which we feel called upon to decide is that of the legal sufficiency of those portions of the plea and the amendment thereto which were stricken on demurrer, for the correctness
It is not intended by the foregoing to hold that there was any legal obstacle to Mrs. Stroud’s setting up fraud on the part of the sheriff iu procuring the signature of her husband to the bond sued on. She seems to have attempted in her plea to make this defense, but the charges of fraud were not sufficiently clear and distinct to save the answer from the effects of a demurrer. Something more than the mere silence, of the sheriff was necessary, under the averments of the plea, to constitute fraud on his part. There appears to have been nothing to make it to his interest that the bond should be given, and there is not even an averment in the plea that the surety on the bond did not know as well as the sheriff, or did not. have equal means with the sheriff of knowing' the real facts in regard to the levy of the mortgage fi. fa. It is not made to appear that that officer was under any duty, legal or moral, to inform the surety of the true situation, and under such circumstances, of course, his mere silence could not constitute fraud.
We deem it unnecessary to discuss the point made by the plaintiff in error that she received from the sheriff no demand or notice to produce the property at the time and place of sale. We are not aware of any law in this State which requires, or even provides for, such demand upon or notice to either principal or surety on a forthcoming bond. The point is not argued in the brief of counsel for the plaintiff in error, and will therefore be treated as having been abandoned.
Judgment affirmed.