Brockhan v. Hirsch

Beck, J. (After stating the facts.) On the controlling issues of the ease there was no material conflict in the evidence, and that submitted would have authorized no other verdict than the one which the trial judge directed in favor of the defendant. Complaint is made of the appropriation of part of the proceeds [822] of the first sale to the payment of tax fi. fas., which had been issued against the plaintiff, and which had been transferred to Hirseh upon his payment of the amount due upon them. It may be true that, as a strict matter of law, the holder of the tax fi. fas. might not have had a right to claim any part of the funds produced by this sale, and that the land would not have been freed from the lien of those tax fi. fas.; but conceding this, the plaintiff in error can derive no advantage from it in this case, for it is affirmatively shown by uncontroverted testimony that this application of the proceeds of the sale referred to was made with the plaintiff’s consent. Mr. Hopkins, who made the agreement with the defendant’s counsel for this application of such part of- the proceeds as might be necessary to pay the tax fi. fas., testified to the fact of the agreement, and that in this matter he was representing Miss Broekhan; and the truth of this testimony is nowhere denied. On the contrary, it was corroborated by a distinct admission in one paragraph of . plaintiff’s petition as originally filed. This paragraph was stricken by amendment, but was introduced in evidence by defendant, and is in the following language: “Your petitioner, through her attorney at law, in a spirit of liberality toward said Henry Hirseh, seeing he was determined to so apply said money, allowed $1780.55 of said purchase-money to be applied to the payment of said tax executions.” Touching the second ground of alleged fraud relating to the erroneous entry by the sheriff, that the entire property described in the levy had been sold, when in fact only one piece .had been sold, it might be said that there is nothing in the evidence to suggest that this was done with a fraudulent intent, and the entire evidence upon this subject strongly negatives the existence of such an intent. And besides this, there is no testimony coming from any witness to show that the slightest harm resulted to Miss Broekhan from the making of this entry, as it does not appear that any prospective purchaser or any one else saw or was influenced by this erroneous entry. The third ground upon which the charge of fraud is predicated relates to the announcement, at the sale of the property fronting 92 feet' on Ivy street, that a resale would be made at two o’clock if the bids were not paid. This ground is without merit, because there was nothing in the announcement or conduct of the sheriff [823] ■which was illegal, as he had a right under the law to give notice of a resale in case of a failure of the bidders' to pay the amount of the bid by a reasonable hour on the day of the sale. Civil Code, §5466; Suttles v. Sewell, 109 Ga. 707. It is not insisted that the time fixed was in any way unreasonable; and we can not see that the fact of this announcement having been made at the suggestion of counsel for Hirsch could have had the effect of making any act illegal if otherwise unexceptionable, unless it was made to appear that some harm resulted to the party whose property was being offered for sale; and no testimony was introduced to show that harm did result or could have resulted. The next ground of fraud is the alleged inadequacy of the price for which the property-therein referred to was sold, and the noise and confusion existing in front of the court-house at tjie time of the sale. Here again there is a total lack of evidence which would have authorized the jury upon this issue to have made a finding contrary to that directed by the court. That there was considerable noise and confusion, and probably more than should have been tolerated by the sheriff, appears to be shown by the testimony in the record. But whether or not this had an injurious effect upon the sale is purely speculative. Besides, the complainant in this case was present at the sale, and made no objection to proceeding with the same at that time. Had she made a request of the sheriff to restore order and quiet, or had she made objection to the sale proceeding under the surroundings as they existed at that time, and then in ease the sheriff had failed either to take steps to put a stop to the disorder and confusion prevailing, or to suspend the sale until the noise and confusion had ceased, she might have had good grounds for objecting to the consummation of the sale; and if her request and objection had been disregarded, there might have been valid grounds for setting aside the sale; at least a question would have been raised, under the pleadings setting up those facts, for determination by a jury, as to whether or not she had been harmed. But in order to take advantage of those grounds she should have acted promptly. Having failed to act in limine, and waited until this late day, she could not prevail in this action upon this ground without introducing evidence showing that she- was harmed by the sale having taken place under the circumstances narrated in her petition. [824] ; No material error,appearing to have been committed by the trial judge in the conduct of the ease,,the judgment directing a verdict is Affirmed. All the Justices concur.