Brown v. Moughon

Hall, Justice. The execution offered with the sheriff’s deed to sustain this claim was issued from a justice’s court in Baker county, and levied by a constable of that county, on certain lots of land, giving their numbers only, without any further description as to their locality; the county and district in which they are located is not set forth in the levy, nor are they described as being in the possession of the defendant or any other person. In the deed conveying them to the purchaser at the sale under this levy, the sheriff undertakes to locate them by county and district. It is evident that the deed does not conform to the levy, which is so uncertain as to the land sold as to render it impossible from the description to locate it; it should have been specified in the levy and advertisement with such precision that it could have been ascertained what .land it was that was sold. The observance of this requirement is said to be [758] specially important in tlie case of sheriff sales. The rule is an excellent one to prevent fraud and speculation at such sales. Such levies are void for uncertainty. The reasons for requiring this particularity are strongly set forth and amply sustained by authority in the luminous opinion delivered by Lumpkin, J., in Whatley vs. Doe, ex dem. Newsom, 10 Ga., 74. But it is urged in argument here that, notwithstanding this fatal defect, the execution and levy together with the sheriff’s deed purporting to convey the property sold thereunder, should have been submitted to the jury, to enable them, with the aid of such other facts as might have been advanced, to locate and identify the land. Such a course, we think, would enhance the very evils which the rule was designed to suppress. In a single case a majority of this court has sanctioned its relaxation to a limited extent, but in that case the description of the property was perhaps somewhat more definite than it is in the present levy. The cases cited from 12 Ga., 440; and 59 Ib., 649, are not in point. In the first, the levy described the property fully and accurately ; the description of the property levied on in the advertisement of its sale was somewhat vague and indefinite; and the court directed the question to be submitted to the jury, to ascertain from the evidence whether the property advertised was the same as that levied on. In the other case, it appears that there had been irregularities in the notice given of the levy to the party in possession, in the advertisement, etc., and the question submitted to the jury was whether the purchaser at the sheriff’s sale had notice of these irregularities. The case above referred to as sustaining this position, and which approaches it more nearly than either of the foregoing, is that of Williams & Company vs. Hart, 65 Ga., 201, but this was not the judgment of a full court. Jackson, J., who delivered the opinion, plainly and openly dissented from the opinion of his colleagues, using this clear and forcible language: “ My brethren think, and it is so ruled, that it is a question for the jury, under all the facts, (a purchaser having [759] bought it at public sale); where the rights of a purchaser intervene they uphold it, but before sale and purchase, all agreed that the levy would be insufficient. My own judgment would be that it is too vague and indefinite a description to pass title to any purchaser to a house and lot in the village. The only description is 1 nine hundred acres of land in and in the vicinity of Union Point.’■ It is not even said that it was known to be the property of James B. Hart (the defendant in execution). That such a description should authorize the sale of a dozen houses and lots, occupied by different families in a town, though unincorporated, as well as a plantation outside the town, a steam saw mill, etc., would be, it seems to me, to open wide the door to all manner of fraud, and no man ought to buy, under such a levy, improved lots and houses in the town, and expect to hold them. The statute, Code, §3640, declares that the officer making a levy ‘shall plainly describe the property levied on, and the amount of interest of defendant therein;’ and section 3647 declares that, in the ‘advertisement, he shall give a full and complete description of the property to be sold, making known the name of the plaintiff and defendant, and the person who may be in the possession of such property.’ How anybody could imagine that he was buying improved property, occupied by tenants in a town, under an advertisement of land ‘in' the vicinity’ of the town, passes my comprehension; and how a levy on nine hundred acres of land’ in and in the vicinity of a.town, plainly describes houses and lots in the town, it is equally difficult for me to see. My brethren agree that it is a circumstance going to show fraud, but that it is for the jury to say whether or not the houses and lots were so levied on and advertised as to convey title to the purchaser, while I hold that such a levy and advertisement cannot pass title at all, so far as the improved lots laid off and built upon and occupied in the town are concerned.”. It is the unanimous opinion of the present court that this dissenting view embodies a correct exposition of the [760] law; and we so hold. In conformity to the hallowed orison, “lead us not into temptation,” it appears to us to be sound policy to take away all inducements to commit fraud. The sections of our Code above cited were evidently framed with this view. The first accomplishes this object in prescribing the requisites of a levy, and is in strict accordance with the rule laid down in Whatley vs. Doe, ex dem. Newsom, a case which appears to have been overlooked in determining Williams & Co. vs. Hart, while the second, in requiring like particularity in advertising the sale under the levy, is in furtherance of the same wise and conservative policy. Judge Warner was on the bench when Whatley vs. Doe, ex dem. Newsom, was decided, and concurred with his associates in that judgment, notwithstanding he gave his consent to the views of the majority in the case of Williams & Co. vs. Hart. The two appear to us irreconcilable, and we can account for the difference only by the fact that that decision was overlooked when the last was made. • The court below may have committed error in the present case in allowing the execution and levy to go to the jury as' color of title, when the claimant did not set up prescriptive title, or rely upon adverse possession under such color for the statutory period. But whether it did or not, is quite immaterial, in view of the fact that such error, if error it be, did not hurt the claimant, and the plaintiff waives the point by refraining from excepting to the decision. Judgment affirmed.