Morgan v. Wolpert

Gilbert, J. 1. The holder of a note secured by deed to land sued the note to judgment, and reconveyed the land for the purpose of levy and sale. Thereafter the sheriff, having complied with all legal requirements, sold the land at “public outcry” to the aforesaid creditor, executed a sheriff’s deed for the purpose of making title in the purchaser, and delivered the deed to the attorney who represented the creditor in procuring the judgment and causing the sale, “with instructions not to deliver it to Mrs. Wolpert [the purchaser] until all costs had been paid by her.” At the same time the attorney signed and delivered to the sheriff a receipt as1 follows: “Received of E. E. Reagin, sheriff, the sum of four thousand, eight hundred and forty-eight & 13/100 dollars ($4,848.13), in the value of land to plaintiff by sheriff’s deed and as a credit on fl. fa., after payment of all costs and expenses. This December 3, 1924. O. J. Coogler, Plaintiff’s Atty.” _ On the same day the sheriff made entry on the execution of the sale of the property to Mrs. Wolpert, she being the highest and best bidder, “the receipt of which is hereby acknowledged.” Held, that the acts of the sheriff above stated amounted to an election by the sheriff to treat the 'sale as'final, and preclude a resale under the Civil Code (1910), § 6071. 2. “A grantor can not deliver a deed to the grantee or his attorney as an escrow. Such a delivery would be equivalent to adding a parol condition to the instrument. To make the deed an escrow, it should be delivered to a third person, to be by him delivered to the grantee upon the performance of any required condition.” Duncan v. Pope, 47 Ga. 445 (4), and cit.; and see Anderson v. Goodwin, 125 Ga. 663 (54 S. E. 679). 3. The ruling last stated is in accord with Dixon v. Bristol Savings Bank, 102 Ga. 461 (31 S. E. 96, 66 Am. St. R. 193). In that case the general rule stated above was recognized, but it was said that the agency implied in the ruling “is an agency in behalf of the grantee to obtain possession of the instrument” for the grantee. There is nothing in Peacock v. Horne, 159 Ga. 707 (126 S. E. 813), in conflict with what is here ruled. This case differs in several respects from Georgia &c. Asso. v. Smith, 163 Ga. 761 (137 S. E. 233), which dealt with an incomplete contract. 4. Under the facts shown, Mrs. Wolpert, the purchaser of the land at' sheriff’s sale, was the owner of the land at the time of her death, and not the owner of the note formerly held, the amount of her bid having been accepted and receipted for as payment on the execution. 5. The defendant, Mrs. Morgan, claims title to the land on the ground that, under item 4 of the will, had the testatrix died holding- the note and security deed these would have passed to the former; and that the land should take the place of the note and security. This claim does not treat the sheriff’s sale as other than final. 6. “If the testator exchanges the property bequeathed for other of the like character, or merely changes the investment of a fund bequeathed, the [463] law deems the intention to be to substitute the one for the other, and the legacy shall not fail.” Civil Code (1910), § 3909. The land held by absolute deed is not property of “like kind” with a note secured by a deed to the same land. 7. Under the facts shown in the record, the question of unauthorized purchase 'of land at sheriff’s sale by an attorney for his client is not made. None of the parties seek to treat the purchase at sheriff’s sale as void. On the contrary, all parties treat the bid for the property, as well as the sale and sheriff’s deed, as valid. If there ever was any such question, the act of the attorney has. been ratified. S. The foregoing rulings control the ease, and require an affirmance of the judgment. 9. No question is made in the record concerning the mental capacity of the testatrix to accept delivery of the deed, though discussed in the brief of counsel for plaintiff in error. [462] Appeal and Error, 4 C. J. p. 521, n. 76; p. 553/n. 35; p. 557, n. 49. Escrows, 21 C. J. p. 873, n. 96; p. 874, n. 6; p. 877, n. 26. Executions, 23 C. J. p. 804, n. 79 New; p. 807, n. 46. Wills, 40 Cyc. p. 1919, n. 68; p. 1921, n. 80. [463] No. 5761. June 20, 1927. Reheabing denied July 29, 1927. Judgment affirmed. All the Justices concur. McElrealh & Scolt, for plaintiff in error. Savage & Crawford, contra.