Saunders v. Register

Gilbert, J. 1. Sales under tax fi. fas. should be made under the rules governing judicial sales. Civil Code, § 1167; Byars v. Curry, 75 Ga. 515. The rules referred to mean those relating to “advertisement, time and place of sale, etc.” Smith v. Jones, 40 Ga. 39, 43. A defect in the advertisement of the sale of the property levied upon under a tax fi. fa, is a mere irregularity and does not affect the validity of the sheriff’s sale made to an innocent purchaser. Civil Code, § 6059; Conley v. Redwine, 109 Ga. 645 (35 S. E. 92, 77 Am. St. R. 398); 2 Freeman on Executions, § 286; Maddox v. Sullivan, 44 Am. D. 234 (2 Rich. Eq. (S. C.) 4). It does not appear that the plaintiff, who purchased at the sale, had notice of the irregularity in the advertisement, and he was therefore an innocent purchaser. Humphrey v. McGill, 59 Ga. 649. In the case of Brooks v. Rooney, 11 Ga. 423 (56 Am. D. 430), a case decided before the adoption of the code and at a time when the utmost particularity was required in cases of tax executions, it was said that “a 'purchaser at sheriff’s sale has a right to presume that a public officer known to possess the power to sell has taken every previous step required of him by the law under which he sells.” It was further said that requirements in regard to advertisement in a particular way, or to sell between [288] certain hours of the clay, were merely directory to the officer, and that his neglect to observe these directions may subject him to a suit for damages at the instance of the party injured by the neglect, but it will not affect the title of the purchaser’ unless there he collusion between him and the sheriff. It was also said that “the purchaser at sheriff’s sale depends upon the ‘judgment, levy, and the deed; all other questions arc between the parties to the judgment and the officer/ It is sufficient for the purchaser that the sheriff had competent authority and sold and.executed to him a title.” In this case the validity of the tax fi. fa. under which the sheriff sold the property to Saunders is not questioned. If the owner of the land was injured by its sale under an advertisement for a shorter time than the law required, his remedy was against the sheriff. Strangers to the title are not injured, and have no right to take advantage of the defective advertisement. We think, therefore, that the failure to advertise the sale of the land for the required length of time was a mere irregularity and did not affect the title of one who was an innocent purchaser. It is different where the tax execution is void, as that is jurisdictional. Shippen Lumber Co. v. Flemister, 146 Ga. 348 (91 S. E. 111). 2. One who was not in possession of land when it was sold for State and county taxes, and who had no interest in the land as owner, or as being in privity with or a creditor of the owner, but who is a mere stranger to the title, has no right to attack the sale because-of failure to advertise legally or for other irregularities. McArthur v. Peacock, 93 Ga. 715 (20 S. E. 215); Morris v. Rogers, 104 Ga. 705 (3), 708 (30 S. E. 937); Bank of the University v. Athens Bank, 107 Ga. 249 (2), 251 (33 S. E. 34). On rehearing, the request that the case of McArthur v. Peacock, supra, be reviewed is denied. It does not appear from the record that at the time the land was sold under the tax fi. fa. the intervenor, Begister, had any interest in the land or was in privity with the owner, hut so far as the record discloses he was a mere stranger to the title. His intervention alleges that the land was conveyed to him on the 4th day of February, 1896, by Smith, who was also a stranger in title, so far as the record discloses. It does not appear what other facts could or would have been shown bv the plaintiff in sunport of his title. This is immaterial, however, because the rejection of his muniments of title by the court was [289] necessarily fatal to his case. The muniments of title made out a prima facie case in behalf of the plaintiff, upon which he was entitled to recover the premises in dispute, nothing else appearing. Hilton v. Singletary, 107 Ga. 821 (4), 826 (33 S. E. 715). Judgment reversed. All the Justices concur.