Perkerson v. Overby

Jackson, Judge. B. H. and N. Overby and others, plaintiffs in fi. fa., ruled Perkerson, the sheriff of Fulton county, for money alleged to be in his hands in law, under the- facts following: John II. James had had a fi. fa. on a judgment younger than the Overbys’ and others, levied upon a city lot in Atlanta, described as a whole lot. On the day of sale, an undivided half thereof was claimed by a third person, and the sheriff, without levying again or re-adverti'áiñg, sold the other undivided half, and John IT. James bought it.' The sheriff, in answer to the rule, stated that he .became doubtful of his right to sell tire other half without re-advertising, and therefore declined to make a deed to James, and to receive the money for the half lot. It does not appear from the record, that James objected to taking the deed and paying the money, but it appears that the sheriff declined himself to make the deed and receive the money. ' The court below, at the instance of the plaintiffs in older judgments, made the rule absolute against the sheriff, and at the same term, afterwards, refused a motion to arrest the judgment which made the rule absolute. The judgment making the rule absolute, and the refusal to arrest it, are the rulings excepted to. Can a sheriff sell an undivided half lot under a levy of the whole lot? The Code, §3640, requires the sheriff, when he levies, to describe plainly the property levied -on, and the amount of the interest of defendant therein. But it seems to be well settled that less than the whole levy maybe sold. In 20 Ga., 591, Judge Lumpkin says that “both at sheriffs’ and administrators’ sales, nothing is more common than to sell less property than is advertised. And we doubt not the right of the administrator, in this case, to limit the sale to twenty acres, or any other quantity.” Well, if a divided half can be sold under a levy of the whole, why cannot an undivided half ? The land described in the levy is more, [416] and the interest sold would be less, in both- eases, than that levied on. If half were claimed — a divided half — the other half could be sold; though the interest described in the levy were the whole lot. So an undivided half, it would seem, under the decision in 20 Ga., might be sold. It is covered by the levy. It is less than the levy. It is a part of the land levied on, capable of being partitioned, and just as clearly defined and capable of description in a deed, as if marked with metes and bounds. Whatley vs. Newsom, 10 Ga., 77, simply decides that the interest sold must be capable of being described; and in that case, “ the interest only of Whatley was levied on and sold, and conveyed by the deed, without specifying what that interest was.” It would seem, if the interest had been specified, it would have conveyed the title; and here the interest sold was an undivided half, and it seems to have been included in the description of the land in the levy, and would hence pass the defendant’s title. But however this may be, it does not seem that the purchaser made objection to taking the deed and paying the money; why, then, should the sheriff not make the deed, and receive it, and hold it, subject to the order of the court, especially as a junior plaintiff ra.fi. fa. bought it, and older judgments were placed in his hands ? We think that it was his duty to take the money and make the deed, and if legal questions arose thereon, let the several plaintiffs in fi. fa., and the purchaser and defendant, if they saw fit, or any of them saw fit, make those questions. It is said, however, that on this money rule,.these plaintiffs must show injury. We think they do. The land of the defendant was sold. If they levied on it again, they might, and probably would, meet a lawsuit. It is much safer, we think, that the sheriff shall bring the money into court and hold it subject to the order of the court and the rights of all parties in respect thereto, than to act in behalf of one of the parties as a sort of guardian of that party’s interest, without even a request from that party so to do. [417] We can see how there might be collusion between the sheriff and the-parties if a door should be left open inviting it, and we think it had better be kept shut. We, therefore, affirm the judgment. Judgment affirmed.