Collier v. Vason

By (he Court. Warner, J. delivering the opinion. The only ground of error assigned to the judgment of the Court below is, the rejection of the Sheriff’s advertisement of the second sale of the property. This second sale was made atthe risk of the defendant, under our Statute, who was a purchaser of the property at a former sale, and failed to comply with the terms of that sale. [1.] By the 32d section of the Judiciary Act of 1799, the Sheriff is required to advertise his sales of property levied on by execution, and to give “ a full and complete description of the property to be sold, making known the name of the defendant, and the person who may be in possession of the property.” Prince, 427. The property was levied on as the property of Joseph B. Shore, and sold as his property; the undefined interest of Joseph B. Shore in the property was not levied on and sold by the Sheriff, as in the case of Whatley vs. Newsom. 10 Georgia Rep. 74. It is unquestionably the duty of the Sheriff, under the Statute, to give as full and complete description of the property levied on by him to be sold, in his advertisement, as it is possible for him to do, in the exercise of ordinary diligence for that purpose, taking into view the location and condition of the property. We do not intend to say that it is absolutely necessary that the Sheriff shall describe lands sold by him, by the particular number in every instance, for that he may not be able always to do, after the most diligent inquiry; but if he cannot ascertain the particular number, or if the lands, as in some parts of this State, are not laid off by number and district, then it will be sufficient to descirbe the property by its particular location, or by any [443] prominent mark or feature, which may-belong to it, and by which the public may readily understand what particular property is embraced in the advertisement. [2.] The Statute contemplates that the Sheriff shall give such a description of the property to be sold, in his advertisement, as shall best enable the public to understand what particular property is to be offered for sale. Lots in a city are most frequently better known by a description of the tenements erected thereon, and the business to which the same are appropriated, than the numbers thereof. The lot on which the Oglethorpe Hotel is situated in the City of Columbus, would most probably be a better description of the property intended to be sold, than if the Sheriff was only to state the number of the lot. [3.] What is to be considered a full and complete description of the property advertised, must always depend on the location and particular character of that property. The description of the property in the advertisement ruled out by the Court below is, “ eight City lots in the City of Albany, numbers not recollected, but known in said City by the name of Joseph B. Shore’s property.” Whether this property was as well known in the County of Baker, by the description of “ Joseph B. Shore’s property,” as it would have been if the particular numbers of the lots had been specially named, was a question of fact for the Jury to have decided, under the charge of the Court as to the law, upon the evidence submitted. It was the duty of the Court to have admitted the evidence, and then instruct the Jury that the law required the Sheriff to give such a full and complete description of the property in his advertisement, as would best enable the public to understand what particular property was to be sold, and to have left them to have decided from the evidence, whether such description had been given ; inasmuch as the sufficiency or insufficiency of the description of the property, must always depend upon its particular character, location and the name by which it is best known in the community in which it is situated and in which it is offered for sale. Let the judgment of the Court below be reversed.