Boyd v. Merriam

Trippe, Judge. It was not denied on the argument by defendant in error that his execution was illegal and void. Counsel for defendant rested his case on the ground that there were two other fi. fas. also levied on the same property at the same' time, and as under them the sale was legal, he cannot be held liable for having his execution also levied. This position cannot be maintained. The fact that a valid and legal fi. fa. is levied on a defendant’s property, and is proceeding to sell it, neither justifies or excuses the enforcement of a void process against that property. Were it so, it would operate as an outlawry, in one sense, of any man’s estate, if there happened to be a good judgment against it which was being enforced. It seems that in this case the three executions were all levied, the property sold under the three, and that defendant’s fi. fa. participated in the proceeds of the sale'; and under that sale the purchaser was put in possession. Because a man maybe, lawfully stricken down, it is no excuse for a third person to deal him another unlawful blow. As to whether an illegal levy upon land is a trespass, see McDougald vs. Dougherty, 12 Georgia, 613, approved in Wallace et al. vs. Iiolly, 13 Ibid., 392. If the levy itself did not constitute a trespass, the sale and delivery of possession by the sheriff to the purchaser would complete it. We think the court erred in dismissing plaintiff’s action.. Judgment reversed.