Howland v. Donehoo

Fish, C. J. (After stating the foregoing facts.) In their brief filed in this court counsel for plaintiff in error say: “The petition alleged, as grounds for setting aside this deed and sale, (1) that the levy was excessive; (2) that the price was grossly inadequate; and (3) that the defendant in fi. fa., before the sale of said property, filed with the sheriff’s office an affidavit of illegality, which was accepted by the sheriff’s office, and thereupon the defendant in fi. fa., naturally supposing that the said sale would be postponed until a hearing could be had upon this affidavit, went away from the place of sale, and that later the attorney for the Exchange Bank, without the knowledge of Mrs. Howland or her attorney, conferred with the sheriff and they thereupon made certain private investigations and finally set aside the illegality and sold the property without notifying or attempting to notify either Mrs. Howland or her attorney.” We will deal with the points insisted on in the brief in the order there stated. 1. Was the levy excessive? Counsel contend in their brief that the mortgaged property was susceptible of subdivision, so as to sell a less quantity than the whole, and thereby raise a sum sufficient to satisfy the mortgage fi. fa.; and therefore that the sale of the entire property was not lawful and should be set aside. We will consider these two points in this division of the opinion. In — 691 — Vickers v. Hawkins, 111 Ga. 119, 120 (36 S. E. 463), it was said: “that an execution in rem against certain specific property may properly be levied upon that property, and that the levy will not be void for exeessiveness though the value of the property be far greater than the amount of the execution. We therefore think that where a tax execution is issued against a particular lot of land, commanding the levying officer to levy upon and sell that lot, a levy ■of the execution upon the entire lot is not excessive.” This ruling was followed in Wilkinson v. Holton, 119 Ga. 557 (3), 558 (46 S. E. 620), where a security deed had been given by the debtor to his creditor and judgment obtained for the indebtedness, and an execution issued thereon had been levied on the entire land conveyed in the deed. In the case last cited it was said that “where the property is easily susceptible of division, it would be the duty of the sheriff to expose it for sale in parcels in such a way as to discharge the amount due on the executions with as little loss to the plaintiff in the present ease as possible.” It will, however, clearly appear from an examination of that case that what was said in respect of the sale, in parcels, of property levied on under the execution there involved, where it is susceptible of subdivision, was purely obiter. See also Cooney v. City of Atlanta, 136 Ga. 118 (3), 120 (70 S. E. 950), where-the fi. fa. apparently directed the marshal to sell so much of the property described as might be necessary .to make the amount of an assessment for a local improvement, and the marshal, in his answer to a petition for injunction, disclaimed any intention to sell in bulk rather than in parcels. Without discussing what may be the rule in eases of executions in rem for taxes or for assessments for local improvements, we know of no ease, where the question was in issue, holding that where a mortgage execution has been levied on the entire property described in the mortgage, judgment of foreclosure, and execution, it must be sold in parcels when susceptible of subdivision. In other eases cited by counsel for plaintiff in error, .the executions there involved were not against specific property, but were against the defendants generally. In Reeves v. Bolles, 95 Ga. 402 (22 S. E. 626), a borrower of money secured the same by a deed to a large tract of land to the lender, judgment was obtained for the money loaned, and execution was levied upon the entire tract of land. The defendant in fi. fa., and certain persons — 692 — as his judgment creditors, filed an equitable petition to enjoin the sale, and prayed that the land be surveyed, platted, and sold in separate parcels. The petitioners alleged that if the land should be sold in one entire tract, it would bring a much less sum than if the same were sold in parcels, and would therefore be sacrificed unless the defendants were enjoined from making the sale as advertised, that is, to be sold in gross. The trial judge refused to grant the injunction, and upon a writ of error to this court his judgment was affirmed. There was a conflict in the evidence submitted, as to whether or not the land would sell to better advantage if divided up into parcels than it would if sold as one entire tract. In the opinion, pronounced by Mr. Justice Samuel Lumpkin in behalf of the court, it was said: "This [conflict in the evidence],, of itself, would be a sufficient reason for declining to interfere with the discretion of the trial judge in refusing by injunction to arrest the progress of the defendant’s execution.” The decision, however, was not left to stand on this ground alone, for it was said: "Granting, however, for the sake of the argument, that a larger amount would be realized by selling the plaintiff’s land in separate-tracts, we are still of the opinion that the judge was right in denying the injunction. It may be within the power of a court of equity, in some cases, to decree that the property of a debtor shall be sold in parcels, and not as a whole, where it manifestly appears that gross injustice would result if the latter course were-pursued. We are entirely satisfied, however, that the ease in hand is not one of this kind. The plaintiff, Reeves, borrowed money, gave his note for the same, 'and for the purpose of securing its repayment executed a deed conveying the entire body of land in controversy. This gave to the lender an absolute legal right to enforce the collection of any judgment he might obtain upon the note-by a sale of the land as one entire tract; . . The land in its entirety being specifically pledged for the payment of the debt, it-must inevitably have been within the contemplation of the parties that if it should become necessary to enforce payment by resort to legal proceedings, the land would.be subject to sale as a whole, just as it was conveyed. It is not denied that the plaintiff in execution has a perfect legal right to have all the land sold to satisfy his judgment; and to have granted the injunction sought would necessarily have been to interfere, to some extent, with the exercise of — 693 — this right.” A judgment of foreclosure óf a mortgage on realty is in the nature of a judgment in rem. “It is a judgment to enforce a specific lien, created by agreement of the parties. It is not alone a judgment as to the amount due on the mortgage, but is also a judgment that the property mortgaged shall be sold to pay the sum adjudged^ to be due.” In pursuance of the judgment ■of foreclosure an execution is issued “commanding the officer to levy upon and sell the property, naming it specifically. What right of judgment or discretion has he ? His duty is to levy the process, and the process commands him to levy upon and sell the property, designating it by full description. He is not directed to raise money, as in case of a general judgment, out, of the property of the defendant, but to raise it out of the property named.” Wallace v. Holly, 13 Ga. 389, 393, 394 (58 Am. D. 518). That it is not the duty of an officer making a sale of land in pursuance of a mortgage foreclosure to divide the land into parcels in making the sale, where the land is described in the mortgage and judgment of foreclosure as a single tract, see Patton v. Smith, 113 Ill. 499; Shannon v. Hay, 106 Ind. 589 (7 N. E. 376); Geuda Springs Town & Water Co. v. Lombard, 57 Kan. 625 (47 Pac. 532).; Cochran v. Goodell, 131 Mass. 464. In the ease at bar the property, as appears from the petition, was described in the mortgage, the judgment of foreclosure, the execution, the entry of levy, and the sheriffs advertisement of sale, as “all that tract or parcel of land situated, lying, and being in a part of the strip of land lying on the South bank of the Etowah river in the Fifth ward of the City of Kome, Floyd County, Ga., known as'the ‘Toll House and Lot/ ” the tract being further described by boundaries and distances. We are clear from what has been said that the levy was not excessive nor the sale void because the property was not subdivided and sold in parcels. 2. We are equally convinced that the sale was not void on account of inadequacy of price. Inadequacy of consideration, even if it be gross, is not. per se sufficient cause to set aside a sheriff’s sale, though it may be a strong circumstance to show fraud. Parker v. Glenn, 72 Ga. 637; Civil Code, § 4129. “While inadequacy of price at a sheriff’s sale will not, of itself, be a sufficient ground to set aside the sale, yet when it is grossly inadequate and is connected with fraud, mistake, misapprehension, surprise, or other circum — 694 — stances which, tend to bring about such inadequacy to the injury of parties interested, the sale will be set aside'by a court of equity” Smith v. Georgia Loan & Trust Co., 114 Ga. 189 (39 S. E. 846). If the price were grossly inadequate in the present case, there were no circumstances connecting it with any fraud, mistake, misapprehension, or surprise, bringing about such inadequacy, as to authorize the setting aside of the sale. As already shown, the levy upon and the sale of the entire tract were lawful, and, as will later be made to appear, the other circumstances relied upon to indicate fraud were not sufficient for that purpose. “This court in 11 Ga., 427, adopts the rule in 4 Wheaton, 503, and makes the purchaser bound to look to the judgment, the levy and deed, and at sheriffs sales requiring him to notice only these. Caveat emptor is not to be applied to him in any other conduct of the officer or other authority to sell and convey.” Overby v. Hart, 68 Ga. 493, 496; Parker v. Glenn, 72 Ga. 637 (2a). In Wilson v. Boyd, 34 Ga. 34 (10 S. E. 499), it was said that if the sheriff sold lawfully, it could not be a fraud for the purchaser to buy, although he paid a small price. “If he was the highest and best bidder at a fair, and lawful sale, he was entitled to the benefit of his purchase, no matter how little it cost him.” In Boyd v. Wilson, 86 Ga. 379 (12 S. E. 744, 13 S. E. 428), it was held: “A purchaser at a tax sale duly made under 'a legal levy, who is neither implicated in nor aware of any fraud contemplated by the selling officer, is not affected thereby.” In the instant case there was nothing tending to show that Morris, the purchaser of the property at the sheriff’s sale, had any knowledge or notice of any irregularity or fault on the part of the sheriff or the plaintiff in execution (the bank) or its attorney, even if anything of that character existed. 3. Was the sale void for the reason that the sheriff made it after the paper purporting to be an affidavit of illegality had come into his hands? We have no difficulty in reaching the conclusion that it was not. An affidavit of illegality must, of course, be sworn to; otherwise it would not be an affidavit. Civil Code, § 5305. The paper purporting to be an affidavit of illegality, which was lodged in the sheriff’s office the afternoon prior to the sheriff’s sale of the property, was unusual in form. In the beginning it stated: “In person before me came the defendant in the above-stated case, who being duly sworn says under oath,” etc. But the jurat, while in the — 695 — ordinary form, was followed by the word “Witness,” under which was the name of a notary public. Mrs. Howland’s name was signed to the paper. The word “Witness” following the jurat probably attracted the attention of the sheriff and caused him and the attorney for the plaintiff in fi. fa. to call up the notary, who apparently had merely witnessed the paper, and to inquire of him whether he had administered an oath to the defendant in fi. fa. The notary replied, no, that he had merely witnessed the defendant’s signature. This all appears from the petition, in which it was nowhere alleged clearly and expressly that the defendant had sworn to the purported affidavit of illegality. It is true the petition alleged “'that said affidavit of illegality was properly witnessed and properly executed,” but the allegation that it was properly executed partakes more of the nature of a conclusion of the pleader than an unequivocal statement of a fact. Such equivocal allegation was "allowed to stand by the pleader, in the face of a special demurrer that the petition did not allege that Mrs. How-land “ever made oath to said alleged affidavit of illegality.” Certainly it was within the knowledge of Mrs. Howland and her attorney whether she had made oath as to the truth of the contents of the paper. It did not appear from the petition that the sheriff ever accepted the paper as an' affidavit of illegality, nor did he do or say anything which tended to induce Mrs. Howland or her attorney to believe that he would accept it. Her attorney, on the afternoon before the day of sale, merely handed the paper to the l.ady who was alleged to have charge of the affairs of the sheriff in his office, with the statement, “Here is an affidavit of illegality to stop the sale of the Howland property,” and this was followed by the allegation that the lady turned the paper over to the sheriff sometime prior to the sale. Ordinary diligence, we think, required Mrs. Howland or her attorney to ascertain from the sheriff whether he would 'accept the paper as an affidavit of illegality and stop the sale. So far as the petition shows, neither of them communicated with the sheriff in reference to the matter, nor was either of them present during sale hours to see whether or not the sale would be made. Moreover, there was no hint in the petition that Morris, the purchaser at the sale, had any knowledge or notice in reference to the paper purporting to be an affidavit of illegality. — 696 — In view of all these circumstances we have no hesitancy in holding that the sale should not be declared void, and that there was no error in sustaining the demurrer to the petition. Judgment affirmed. All the Justices concur.