183 Ga. 53 | Ga. | 1936
On February 15, 1934, A. W. Wilson, hereinafter referred to as plaintiff, obtained á judgment in the superior court against Lora Tanner, hereinafter referred to as defendant, for $1379.45, with interest and costs, on a verdict rendered January 19, 1934. On January 20, 1934, defendant filed her motion for new trial, and supersedeas was granted until final disposition of the motion. On May 8, 1934, execution was issued based upon the verdict and judgment and recorded upon the general execution docket of the county. On July 28, 1934, defendant’s motion for new trial was overruled. She brought the case to this court by writ of error, and the judgment overruling the motion for new trial was affirmed. (Tanner v. Wilson, 180 Ga. 694, 180 S. E 614). The remittitur was made the judgment of the trial court on June 24, 1935. On August 2, 1935, the plaintiff paid to the Federal Land Bank of Columbia, holder of a security deed to certain property of the defendant, recorded April 8, 1925, the amount necessary to pay the debt so secured,
The sheriff received the affidavit of illegality, but did not suspend the sale, and the land was sold between the legal hours of sale on the first Tuesday in September, 1935, and was bought in by the plaintiff for $3300. Deed to the plaintiff was executed by the sheriff, and was duly recorded. On September 38, 1935, the sheriff returned the affidavit of illegality into court, and it was filed and placed on the docket for trial at the October term, 1935. When the case was called for trial the defendant offered an amendment in aid of her affidavit of illegality, alleging that she had deposited her affidavit of illegality with the sheriff; that the sheriff received it but did not suspend the sale or return the illegality to the court before the sale; that no notice was given to her by the sheriff that he did not intend to accept it; that in selling the land the sheriff was acting under direction of counsel for plaintiff; that G. J. Tanner (to whom defendant sold the land) and his tenant were in possession and had been notified by the sheriff and the plaintiff to vacate the premises, and upon their failure to do so they will be ousted; that plaintiff is claiming title and the right to immediate possession; that by reason of the fact that the illegality was undisposed of at the time of sale, the property did not bring its full market value of $5000 under normal conditions; that the sale under the execution is void, for the reasons that the sheriff was without authority to sell while the illegality was pending, and that the original illegality set out sufficient grounds to require the sheriff to suspend the sale; that the execution was proceeding illegally in that it had been levied on certain crops belonging to G. J. Tanner and his tenant, as the property of defendant, for the purpose of collecting the balance due on the execution after the application of the proceeds of the sale of the land thereto; and that the de
The court refused to allow the amendment. A motion to dismiss the affidavit of illegality was made, on the grounds (a) that it affirmatively appeared therefrom that defendant, before the levy of the execution, conveyed to G. J. Tanner her interest in the land levied on, and therefore the execution was not proceeding against her property; and (b) that inasmuch as the land had been sold under the execution, and the affidavit of illegality was not returned to the court until after said sale, the questions raised by the affidavit were moot. The motion was sustained by the court, and the defendant excepted.
"Affidavits of illegality are, upon motion and leave of court, amendable instanter by the insertion of new and independent grounds: Provided, the defendant shall swear that he did not know of such grounds when the original affidavit was filed.” Code, § 39-1005. This section has no particular reference to amendments setting up purely equitable defenses, or amendments praying for ordinary or extraordinary equitable relief, and the right to such amendments must be determined by the law in reference thereto. “The superior courts, on the trial of any civil case, shall give effect to all the rights of the parties, legal or equitable, or both, and apply on such trial remedies or relief, legal or equitable, or both, in favor of either party, such as the nature of the case may allow or require.” Italics ours. § 37-901 (Ga. L. 1887, p. 64). “A defendant to any suit or claim in the superior court, whether such suit be for legal or equitable relief, majr claim legal or equitable relief, or both, by framing proper pleadings for that purpose, and sustaining them by sufficient evidence.” § 37-905 (Ga. L. 1884-5, p. 36). “Any defendant may also, by proper pleadings and sufficient evidence, obtain the benefit of extraordinary remedies allowed
No sufficient ground of illegality is set out in the amendment by the allegation that the execution is now proceeding, for the balance due thereon, against the crops of G. J. Tanner and his tenant. If this allegation be true, it is a matter about which defendant need give herself no concern, but may allow the real owner to protect, in a proper way, his own property from an improper sale. Zachry v. Zachry, 68 Ga. 158 (4); State v. Sallade, supra. Nothing here ruled is in conflict with the rulings in Moore v. O'Barr, 87 Ga. 205 (13 S. E. 464), and in Harris v. Woodard, 133 Ga. 104 (65 S. E. 250).
As has heretofore been said, the only purpose and office to be performed by an affidavit of illegality is to arrest an execution which is proceeding illegally. After an execution has proceeded to the extent of a sale of the property levied on, the execution and delivery of a deed by the sheriff, and the application of the proceeds of the sale toward the payment of the amount due on the execution, there is no proceeding of the execution to be arrested; and a decision of the questions raised in the illegality, although the illegality may have been presented before the sale and returned to court afterward, could not at that time arrest the execution. Therefore the questions raised therein were moot.
The court did not err in refusing to allow the offered amendment, and in dismissing the affidavit of illegality.
Judgment affirmed.