Blalock v. Wells

Hill, J. This is a levy and claim case. W. J. Wells sued J. H. Blalock and obtained judgment against him on a promissory note given for the purchase of a certain tract of land containing 153 acres, more or less. The vendor, Wells, at the time of the sale executed a bond for title .to the land to the vendee, Blalock, who subsequently transferred the bond for title, before the judgment on the purchase-money note, to his wife, Maggie Blalock, the claimant. The bond and transfer .were in evidence. The land in controversy was levied on under the fi, fa. in favor of Wells, and was advertised to be sold. At the sale the claimant bid in the land for the sum of $990. The total amount due on the Wells fi. fa. was $489.64. The defendant paid the sheriff the full amount due on the fi. fa., as the agent of his wife, and with her money, and gave his check' for $500.36 as the difference between the amount of the fi. fa. and the bid at the sale. Before the check for the balance was paid, the defendant in fi. fa. ordered its payment stopped, which was done. The defendant demanded a deed from the sheriff to his wife, the claimant in this case, and who was the admitted purchaser at the sale. The sheriff executed the deed, but declined to deliver it until the balance of the bid at the sale was paid. This the defendant and his wife refused to do. In addition to the fi. fa. of Wells against Blalock, there was a fi. fa. [625] in favor of W. D. Sutton against him, but the deputy sheriff who sold the land knew nothing of this fi. fa. prior to the sale. On the failure of the purchaser to pay the difference of $500.36 to the sheriff, the latter readvertised the land for sale under the original fi. fa. of Wells against Blalock. This fi. fa. had been paid in full when the land was advertised under .it the second time. Upon this levy, Maggie Blalock interposed her claim. Upon the trial .of the claim case the foregoing facts, and others not necessary to mention here, were in evidence; and at the close of the evidence counsel for plaintiff in the Sutton fi. fa. moved to dismiss the claim, on the ground that the claimant was the bidder at the sale, and the property was knocked off to her, and she is now estopped from claiming the property, or from setting up any fact which tended to show the sale was in any wise illegal. The court passed an order dismissing the claim. To this order the claimant excepted. The fi. fa. in this ease, having been paid in full at the time of the second advertisement under it, was functus officio. It had performed its office. Dismissing the claim had the effect of leaving the settled fi. fa. to.proceed and the land to be readvertised and sold, which could not be done. As it was paid in full, it was legally dead, and could perform no other service as to the sale of the land. It could not be used for the purpose of collecting the difference in the bid at the sale, so as to apply this difference to some other fi. fa. which had not been levied. There is nothing in the evidence to show that the Sutton fi. fa. had been levied on the land; and the Wells fi. fa. having'been paid, no further advertisement and sale could be had under it. In Wade v. Hamilton, 30 Ga. 450, it was held: "The interest which will support a claim under our statute is any interest which renders the property not subject to the levying fi. fa. or attachment, or which is inconsistent with the plaintiff’s right to proceed in selling the property.” And see Hurley v. Epps, 69 Ga. 611; Rowland v. Gregg, 122 Ga. 819 (50 S. E. 949). Under the facts stated above, it was error to dismiss the claim. Whether the land could be subjected to the fi. fa. in favor of Sutton is not now before us for consideration. Nor is this a suit to recover the balance of the bid at the sale. Judgment reversed. All the' Justices concur, except Atlcinson, J., absent.