Hobbs v. Hamlet

Fish, J. In the trial below counsel for both parties agreed that the question’involved was one of law, and that the presiding judge should direct a verdict after hearing the facts and argument. A verdict was directed finding the property subject, to the mortgage fi. fa., upon the ground that the levy of the tax fi. fa, was grossly excessive and that the sale thereunder was void. Such ruling was in accordance with the former adjudications of this court. In Brinson v. Lasseter, 81 Ga. 40, it. was held that “The levy of a tax execution for $3.60 on one, hundred acres of land, ivorth $1,200, is such a fraud on the law as to render the sale void at the option of the landowner, ancjl a deed made in pursuance of such levy and sale is void on its face, if it show the fact of such excessive levy.” A later-case strongly in point is Williamson v. White, 101 Ga. 276. There a tax execution for $13.77 and fifty cents costs was levied upon 555 acres of land embracing three lots, viz., numbers 167, 168, and 193. The sheriff exposed the land for sale in separate parcels. Number 167 sold for $8 ; number 168 was [405] next sold for $5.50, and number 193 was then sold for $20. Two of the lots contained 200 acres each, and the third 152 1/2 acres. The land was worth at least $2 per acre. It was held that such a levy was palpably and grossly excessive and rendered a sale thereunder void. Justice Cobb in rendering the decision said: “The fact that the sheriff sold the three lots levied on separately does not alter the case. The levy of a $14 ■execution upon 152 1/2 acres of land, which was the. smallest lot, and of the value, according to the evidence, of at least $2 an acre, would have been so grossly excessive as to have avoided the sale if no other lots had been included in the levy. An excessive seizure by the sheriff of a defendant’s property is what constitutes the fraud upon his rights, and a sale by parcels, will not cure it, when it appears that a seizure of any one of the parcels would have been in itself an excessive levy. Purchasers are deterred, and wisely so, from buying property offered in parcels, where the levy as a whole is so grossly excessive as to render the same voidable for fraud.” In the case now under consideration a tax fi. fa. for $16.20 was levied upon an undivided one-half interest in 1225 acres of land Worth five or six dollars per acre. Such a levy was so grossly excessive as to be deemed fraudulent. While the land was offered in parcels, the smallest interest offered was an undivided half-interest in a half lot containing 100 acres, such interest being worth $250 or $300. A levy upon this interest alone would have been excessive and void. As suggested by Justice Cobb in Williamson v. White, supra, the very fact that a levy as a whole is so grossly excessive as to be void is sufficient reason to deter persons from purchasing the property when offered in parcels. Nobody cares to buy at a void sale. As bearing on main point, see Doane v. Chittenden, 25 Ga. 103; Parker v. Glenn, 72 Ga. 169; Mixon v. Stanley, 100 Ga. 372; Forbes v. Hall, 102 Ga. 47. Judgment affirmed. AU the Justices concurring.