Scruggs v. Bennett

Bloodworth, J. (After stating the foregoing facts.) The forthcoming bond upon which this suit was brought provided that the property levied upon should be delivered to the levying officer “at the time and place of sale.” It was undisputed that the property levied upon was worth more than the amount of the execution. At the trial the property described in the bond was not forthcoming as provided for therein. Counsel for the defendants in error insists that his clients did not breach the bond, because “property that is cumbersome, like a sawmill, can not be delivered at the place of levy,” and that “the property was at the same point on the day of sale that it was on the day of the levy, and had not been moved, and the same was tendered to the officer.” To support his contention he cites the case of Grace v. Finleyson, 10 Ga. App. 480 (2) (73 S. E. 689). As was aptly said by Judge.Powell in that case, “a tender of property can not be constituted by mere words.” The case just referred to is easily differentiated from the case now under consideration. In that case the levying officer, as provided by section 6060 of the Civil Code of 1910, advertised that on the day of sale the property would be situated at the place where it was levied on. That was not done in the present case. The ruling in that case will not be extended. In King v. Castlen, 91 Ga. 488 (2) (18 S. E. 313), it was held that “the provisions of section 3646 of the code [§ 6060 of the Civil Code of 1910], relieving levjdng officers in certain instances from removing heavy property to the court-house door, were made for the benefit of the •officers and the parties to processes levied by them, and not for the benefit of other persons who may voluntarily contract in writing [133] by a statutory bond to deliver such property at the court-house door.” Conceding that the sawmill levied on was cumbersome, was “difficult and expensive to transport,” we are shown -that under the facts of this case the officer could not legally have sold it unless it had been brought to the court-house door. But it is not even insisted that the other property was difficult and expensive to transport, and none of the property levied upon was delivered to the officer at the time and place of sale. In an action on a bond the burden is upon the defendant to account for all the property levied upon. Young v. Waldrip, 91 Ga. 765 (18 S. E. 23); Carr v. Houston Guano and Warehouse Co., 105 Ga. 268 (31 S. E. 178) ; Wall v. Finney, 136 Ga. 114 (3) (70 S. E. 658). As no legal reason was shown why the provision of the bond that the property should be delivered at the time and place of sale was not complied with, and as it is undisputed that none of it was there, the verdict is without evidence to support it, and the court erred in overruling the motion for a new trial. Judgment reversed. Broyles, C. J., and Lulce, J., concur.