Morris v. Tinker

Bleckley, Judge. 1. The Code declares (section 888) that when the principal amount of a tax execution does not exceed fifty dollars, the levy * * must be made by a constable, and not otherwise.” The act of February 25, 1876, (pamph. p. 30)? changes this provision, but the act is subsequent to the levy and sale now under consideration, and therefore cannot be invoked here. The sheriff was empowered to sell land after levy- and return by a constable, but could not make the levy himself unless the execution exceeded fifty dollars in amount. This was the law; and a levy made by the sheriff contrary to its express provisions, was nothing. A sale resting on such a levy has no validity. 2. The sale being a nullity, the sheriff’s deed was utterly void. It was irrelevant as color of title, for it was too young. Upon its face, it showed there could be no prescription under it, the legal prescriptive period being longer than the interval between the date of the deed and the commencement of action. 3. The mill-site and the mill thereon could have been rented or leased by one and the same contract, and the whole sum would have been collectible as rent. 39 Ga., 18, 19. Whatever would be rent as between landlord and tenant, is mesne profits as between the parties in ejectment.' Though the mill and the laud may have been separable without injury to either, still, while they were in fact together, and used, or capable of being used in the ordinary way, they were worth so much for rent. It is proper, and accords with usage, we think, to speak of the rent of a mill, the rent of a factory, etc., and in so doing, the use of the machinery, fixed or unfixed, is not thought of as excluded, but as included. The exact point made by counsel, however, is, that the declaration does not mention the mill, but describes the land only. There is plausibility in the objection, but not much positive force. With reference to rent or mesne profits, the whole is to be taken as realty, and a [473] suit for the profits of the land, applies to the land in its actual condition. In an action by a landlord against his tenant for rent, there could, we think, be a recovery for the entire rent, under such a description of the premises as this declaration contains. This being so, the description seems to us sufficient. When a mill-site has a mill upon it, attached to the earth in the usual way, and a trespasser takes possession of the site and uses the mill as it stands, he cannot insist on a separate valuation of the site and the mill, in accounting for mesne profits. He is chargeable with the value of the premises for rent, as a whole, and a description of the land with sufficient certainty to identify the premises, will include all parts of the premises. 4. According to the evidence, the improvements which were urged as a set-off against mesne profits were, for the most part, temporary in their nature. They were perishable, and the jury could well believe that they had perished, or were likely to do so before the owner of the premises could reap any benefit from them. Though they cost a considerable sum, and for a time enhanced the value of the property, there was good reason for disallowing them as matter of set-off. Owing to the destructive influences to which they were exposed, they had to be renewed periodically. Judgment affirmed.