Upchurch v. Lewis

Trippe, Judge. 1. It was decided in Parks vs. Bailey, 22 Georgia, 116, which was reaffirmed in Harvill vs. Lowe et al., 47 Georgia, 214, and in Brunson vs. Grant, 48 Georgia, 394, that a sale of land by a sheriff under an execution for the purchase money against the vendee who only holds a bond for titles, is illegal unless the vendor has filed and had recorded in the clerk’s office a deed to his vendee for the land before the levy. This principle applies to this case. 2. It is true the vendee may bar himself of the right to demand that the sale be set aside, if he so act as to induce others to purchase, and where it would be a fraud on such purchaser.to permit him to repudiate those acts or the sale which he may have aided in effecting. But he is not es-topped, from the fact that he was present at the sale and did not protest against it, when it does not appear that he knew or had notice that the deed had not been filed and recorded. Those were acts which he could not control, and with which he had nothing to do. 3. We cannot ascertain satisfactorily from the evidence in the record what amount was due on the execution at the time of the trial. The verdict fixed that amount. It set aside the sale as illegal, and found the land to be the property of complainant, upon his paying Stillwell, who was the transferee of the execution, and who became the purchaser by assuning the bid of Lewis, the sum of $230 00. It is very probable there was a larger amount duo on the execution. It is impossible to tell from what is before us. The judge before [625] whom the case was tried granted a new trial, and under all that appears we cannot say he abused his discretion. Judgment affirmed.