69 Ga. 506 | Ga. | 1883
The plaintiffs in error, as executors of John M. Cooper, obtained from the court of ordinary of Chatham county an order to sell, as his property, for the purpose of paying the debts, etc., the eastern half of lot No. (8) eight, in Vernon Tything and Heathcote ward, in the city of Savannah, with the improvements and buildings thereon. This order empowered them to employ an auctioneer to conduct the sale, and required them to make return of the same to the court, specifying in their return the property sold, to whom sold, and the terms of the sale.
Acting under this order, and reciting it as their authority, they advertised the property for sale on the first Tuesday of July, 1881. The advertisement described the property as the “ eastern half or three-quarters” of said lot, containing forty-five by ninety feet, “more or less,” and the improvements thereon, as consisting of a residence located on South Broad, between Barnard and Jefferson streets, containing twelve rooms in the main building, and a commodious outbuilding, having six rooms.
When the lot in question was brought to sale, it was bid off by Gazan for the sum of $5,250, who, for reasons which will hereafter appear, refused to take the property at the bid, although the plaintiffs offered him the title and demanded of him the sum bid ; thereupon they advertised the property to be sold at his risk on the first Tues
This suit was brought to recover the difference between the sums bid at the two sales, together with the expense of the last sale, and counsel fees incurred for prosecuting this suit. The defendant pleaded the general issue, “nil debet" and contended that he had been misled by the advertisement as to the quantity of land purchased, and that the advertisement did not conform to the order authorizing the sale, and did not cover the property directed to be sold.
The evidence shows that a full lot in that part of the city had a frontage of sixty feet and ran back ninety feet; that there were more than thirty and less than forty-five feet of frontage; that it was more than a half, and less than three-fourths of the entire lot by about eight and a half feet. There was evidence showing that this extra six and a half feet, running back the entire depth of the lot, was an encroachment upon lot number seven, joining it laterally ; that it had been under enclosure continuously and uninterruptedly for more than forty years, and thus occupied with the eastern half of lot number eight, and was regarded as a part of the latter.
In any view that can be taken of this testimony, we think this ruling was erroneous. It was one of the issues involved in the trial of the case, and was the conclu
The trial proceeded upon this and other testimony contained in the record, and the jury having found for the defendant, the plaintiff made a motion for a new trial on various grounds, the first nine of which relate solely to this testimony admitted over objection, which has already been disposed of.
Now this charge, excepted to, is complete in itself, and is of the most general character. The attention of the jury is not called to the circumstances hypothetically stated, leading to and attending the sale and purchase.
The charge assumes that the advertisement, save as to the qualification, implied from the phrase “ more or less” represented the lot in question as containing forty-five feet front. The facts do not authorize the assumption. The advertisement recites the order for the sale, granted by the court of ordinary, which described the property as the east half of the lot in question. ' “ More or less,” as used in the advertisement to describe the quantity of land, should not be disconnected from what immediately precedes it, viz.: that “ one-half or three-fourths” of the eastern part of lot eight was offered for sale ; nor from the description the advertisement gives of the improvements upon the lot; nor from the fact that the entire part of the lot sold was enclosed and occupied by the buildings, and had been so for forty years; that the part so enclosed and occupied actually contained six feet and six inches more than a half lot.
Again, this charge submits it to the jury to infer that the defendant may have been misled solely from the fact that the part of the lot sold was less than three-fourths thereof, and that-being so misled he was defrauded. Leaving out of view all other facts disclosed by the testimony,
Upon the law, the court charged correctly as an abstract principle, that where a mistake was innocently made, which had been acted upon by the opposite party, this constituted a legal fraud (Code, 3i74\ and in connection therewith read to the jury other sections of the Code applicable to the subject, but brought to their attention only isolated facts in evidence, giving to them thereby undue prominence. In that immediate connection nothing was said as to the defendant’s duty to institute any inquiry in reference to the matter complained of, though in a subsequent part of the charge that was referred to in a general way.
In Causey vs. Wiley, Banks & Co., 27 Ga., 444, the relief was sought upon the ground of fraud, growing out of the quasi confidential .relations between the parties, and in that case the judge charged that “ it is a settled principle that fraud is not to be presumed, but must be proved by those alleging it.” This charge, although sound in a case to which it was applicable, was held to be inappropriate
tst. That this order “authorized the sale of the east half of the lot only, and if the premises sold embrace more than that, then the sale is void, and the defendant is not bound by his bid.”
2d. That if the eastern boundary of the Cooper property has been recognized and acquiesced in by Cooper and the adjoining owners as the dividing line between lots 7 and 8 for more than twenty years, then that would make such line the line of division between said lots, and would in law make the encroachment on lot 7 a part of lot 8, provided the owner of the premises used and occupied it for this length of time as a part of lot 8, or as an appurtenance of the same; but 3d, if he did not occupy it as a part of said lot, although his prescriptive title to it would be good, yet the executors could not sell it under the order, and it would still remain a part of his estate, and would not be diverted by the sale.
No portion of this charge should have been given, except that numbered 2; that was required by the evidence in the case. There was nothing in the proof to authorize or require the parts marked 1 and 3, however correct the principles announced may have been, considered as abstract propositions of law.
Admitting, for the sake of the argument, that these principles, announced in the case of a private sale, are applicable to judicial sales, we are to inquire how stands the case before us? It is certain that there was not in this case a representation of the quantity of land, qualified alone by the words “more or less but there were other qualifications of this in the advertisement, and in the order for sale upon which it was based ; moreover, both parties resided in the same community, both had access to the public records, both knew, or might have known, the exact situation of the property, the ground enclosed and occupied by the buildings. The purchaser was indifferent, if not grossly negligent, in not obtaining information as to these matters.
A stronger case of premeditated and purposed neglect than is here furnished it would be difficult to conceive, a neglect to which his adversaries could, under the circumstances, have contributed nothing; if he is imposed upon, the imposition is self-inflicted ; they had no agency in bringing it about; they should not be made to suffer for his mistake; nor can he be permitted to shield himself from the consequences of his own indifference and inaction ; volenti non fit injuria applies with full force to his' action in this case ; he took his course upon reasons that satisfied him of its propriety, and the consequences of his “masterly inactivity” should not be visited upon others; vigilantibus non dormientibus jura subviniunt is embedded in the very elements of the law, and sanctioned and approved by the experience of ages.
A party is not entitled to an injunction who shows that he has been negligent and careless in guarding his rights,
All this applies with increased force to judicial or quasi judicial sales, where caveat emptor is the rule that purchasers are to observe. The cases cited, together with others, would seem to authorize, if not to compel, the conclusion that a purchaser at such sales can protect himself in no other way than by showing actual fraud, or mistake unaffected by his own negligence, of a character so gross as to amount to fraud. Rorer on Judicial Sales, §§ 566, 567, 570, 575 ; 99, and cases there cited; 64 Ga,, 503; 26 Ga., 564.
The defendant sought to get rid of this sale bj showing that the property was bid for by an agent of one of the executors. If the executor himself had bid and had purchased the property, the sale would not have been void, but voidable, at the option only of parties interested in the estate as legatee or creditor. No stranger had a right to interfere, nor could the trustee purchasing, at his own option, have avoided the sale.
But a sufficient answer to this objection will be found in the fact, that the purchaser did not know that the executor was bidding at the sale ; that he was under a misapprehension as to the location of the property was nobody’s fault but his own. After the sale was made, the next highest bidder was not bound to take the property at his bid, although the defendant was willing to pay the difference between that and his own bid, and actually offered so to do.
The auctioneer in this case testifies that the defendant endeavored to get him to make this arrangement for him
We determine this case and grant the new trial upon the facts as they appear in this record and upon the ques tions therein made.
Judgment reverced.