Brady v. Smotherman

180 S.E. 862, 51 Ga. App. 480, 1935 Ga. App. LEXIS 380

• Court: Court of Appeals of Georgia
• Decided: July 3, 1935
• Docket: 24582
• Status: Published

Opinions

Sutton, J.

This wás an action against the sheriff by the purchaser of certain land at a sale under an execution, who sought to recover the amount paid by him for the land. A verdict was directed for the plaintiff. A motion for a new trial was overruled, and the exception is to that judgment. The sole question for determination is: Can a purchaser of land at a sheriff’s sale under an execution, where the sheriff has paid over to the plaintiff in execution the consideration paid by the purchaser, and where the levy has been declared excessive by a court of competent jurisdiction and the sale set aside and the sheriff’s deed canceled, the purchaser being a party to the action to set aside the sale and cancel the deed, maintain an action against the sheriff for the amount of money paid by him to the sheriff for the purchase-price of the land ?

In order for a sheriff to make a valid sale of land under an execution there must be a legal levy of the execution thereon. A levy which is grossly excessive is illegal and void, and a sale in pursuance thereof may be set aside and the sheriff’s deed canceled. Doane v. Chittenden, 25 Ga. 103; Wallace v. Trustees of Atlanta Medical College, 52 Ga. 164; Morris v. Davis, 75 Ga. 169; Brinson v. Lassiter, 81 Ga. 40, 42 (6 S. E. 468); Williamson v. White, 101 Ga. 276 (28 S. E. 846, 65 Am. St. R. 302), and cit. Roser v. Georgia Loan & Trust Co., 118 Ga. 181 (44 S. E. 994), and cit.; Stark v. Cummings, 127 Ga. 107 (56 S. E. 130), s. c. 119 Ga. 35 (45 S. E. 722), and cit. As above stated, it has been adjudicated in this case that the levy was excessive, and the sale was set aside and the sheriff’s deed canceled. The purchaser at the sale was a party to these proceedings.

“The purchaser shall look for himself as to the title and soundness of all property sold under judicial process. Actual fraud or misrepresentation by the officer or his agent may bind him personally. No covenant of warranty shall bind him individually, unless made with that intention and for a valuable consideration.” Code of 1910, § 6054, Code of 1933, § 39-1307. No question of fraud or misrepresentation or of warranty is involved in this case. “The purchaser at judicial sale shall not be bound to look to the appropriation of the proceeds of the sale, nor to the returns made by the officer, nor shall he be required to see that the officer has complied fully with all regulations prescribed in such cases. All such irregularities shall create questions and liabilities between the officer and parties interested in the sale. The innocent purchaser shall be bound only to see that the officer has competent authority to sell, and that he is apparently proceeding to sell under the prescribed forms.” Code of 1910, § 6059, Code of 1933, § 39-1311. In Colbert v. Moore, 64 Ga. 502, it was stated that under our Code the purchaser “must look for himself as to the title and soundness of all property sold under judicial process.” In Lowe v. Rawlins, 83 Ga. 321 (10 S. E. 204, 6 L. R. A. 73), it was held that the rule of caveat emptor, applicable to aE judicial sales, is not only recognized by many decisions of the Supreme Court but is expressly declared by statute. In Worthy v. Johnson, 8 Ga. 236 (52 Am. D. 399), it was stated that caveat emptor is the best possible rule that can be laid down as to judicial sales, that all who attend such sales ought to take care and examine into the title, etc., that no warranty express or implied can be raised on the part of the owner, as to whom the proceeding is compulsory, nor of the sheriff, who is the mere agent of the court, nor of the court itself, and that the purchaser is compelled to pay the money bid at such sale, notwithstanding any defect in the title. “Where property of a defendant in execution is seized and sold by the sheriff, and there is no warranty of title on the part of the defendant in execution, or the sheriff, the maxim of caveat emptor applies to the purchaser of property at sheriff’s sale.” McWhorter v. Beavers, 8 Ga. 300. In Brooks v. Rooney, 11 Ga. 423, 427 (56 Am. D. 430), our Supreme Court adopted the rule laid down by the United States Supreme Court in 4 Wheaton, 503, as to caveat emptor, regarding a purchaser at a judicial sale, and made such purchaser at a sheriff’s sale bound to look to the “judgment, the levy and deed.” Overby v. Hart, 68 Ga. 493. The court in that case said that in execution sales by a sheriff the purchaser was required to look to and notice the judgment, levy, and deed, and that “Caveat emptor is not to be applied to him in any other conduct of the officer or other authority to sell and convey.”

The doctrine of caveat emptor relative to judicial sales was followed or recognized in Conley v. Redwine, 109 Ga. 640, 645 (35 S. E. 92, 77 Am. St. R. 398); Parr & Wood Furniture Co. v. Barnett, 16 Ga. App. 550 (85 S. E. 823); Fitzgerald Granitoid Co. v. Alpha Portland Cement Co., 15 Ga. App. 174 (82 S. E. 774); Hill v. Kitchens, 39 Ga. App. 789 (148 S. E. 754); Johnson v. Reese, 28 Ga. 353, 356 (73 Am. D. 757); Kenner v. Connolly, 22 Ga. App. 94 (95 S. E. 308); Dolterer v. Pike, 60 Ga. 29, 30; Pinkston v. Harrell, 106 Ga. 102, 104 (31 S. E. 808, 71 Am. St. R. 242); Methvin v. Bexley, 18 Ga. 551. In Keen v. McAfee, 116 Ga. 728, 731 (42 S. E. 1022), the Supreme Court, in dealing with a void judicial sale, held that in all judicial sales in Georgia the doctrine of caveat emptor applies, that the purchaser at such a sale must at his peril ascertain that the officer making the sale has competent authority to sell under prescribed forms, that such purchaser can not repudiate his bid where there is a defective title or no title at all, unless there is fraud, and that a purchaser at such a sale is bound to look to the judgment, the levy and the deed. “The law presumes that every public officer performs his duty; and all the purchaser at a sheriffs sale has to look to is the title of the defendant in execution and the authority of the officer to sell.” Solomon v. Peters, 37 Ga. 251 (3) (92 Am. D. 69); Gower v. New England Mortgage Security Co., 152 Ga. 822 (111 S. E. 422); Conley v. Redwine, supra. The officer gets his authority to. sell the lands of the defendant in execution by virtue of the judgment, the execution issuing thereon, and the levy of the execution upon the lands of the defendant. The purchaser at an execution sale, in looking to the authority of the officer to sell, must of necessity look to the judgment and the levy. Corpus Juris states that while the doctrine of caveat emptor has its legitimate force and effect in precluding any idea of a warranty by the defendant in execution or by the sheriff who sells property under an execution in his hands, yet in some jrrr is dictions it has application where a purchaser acquires no title to the property sold. 23 C. J. 778, § 833, citing Methvin v. Bexley, 18 Ga. 551.

Ordinarily the bona fide purchaser at a sheriffs sale under á valid execution takes just what title the defendant in execution has, no more and no less; but, as stated, a judicial sale which is declared void passes no title to the purchaser. Walters v. Taylor, 19 Ga. App. 822 (92 S. E. 352); Rogers v. Smith, 146 Ga. 373 (91 S. E. 414); 23 C. J. 746, § 789. So the doctrine of caveat emptor is applicable where the purchaser at a sheriffs sale gets a defective title, and also where no title to the property sold passes to the purchaser, the sheriff’s sale being void on account of a grossly excessive levy. This is true in Georgia, although the rule prevailing in many other jurisdictions seems to be that the doctrine of caveat emptor “has its legitimate force and effect in precluding any idea of a warranty,” and that it is not applied strictly to void judicial sales. Note,'68 A. L. R. 681.

In Forbes v. Hall, 102 Ga. 47 (28 S. E. 915, 66 Am. St. R. 152), it was held that the sale under the execution was void on account of an excessive levy, and that such a.levy is no authority to sell, and therefore it is immaterial who the purchaser is, he gets no title. Conley v. Redwine, supra. In Morris v. Davis, 75 Ga. 169, 174, there was a grossly excessive levy and the sale was declared void. The Supreme Court said that while an innocent purchaser for value is protected from irregularities, yet where the levy is excessive, the sale is illegal, and no title passes to the purchaser, that the purchaser at all judicial sales depends upon the judgment, the levy, and the deed, and that the purchaser must see to these and guard himself against illegality. In Methvin v. Bexley, supra, a bill in equity, brought against the sheriff, the defendant in execution, and the plaintiff in execution, by a purchaser at the sheriff’s sale who had paid the sheriff the purchase-price and could not get possession, because the defendant in execution had no title, was dismissed on the ground .that the doctrine of caveat emptor applied, and there were no allegations in the bill as to any fraud.

In the present case the proceeds received by the sheriff from the purchaser at the sale had been paid over to the plaintiff in execution in extinguishment of the debt of the defendant in execution. Corpus Juris lays down the rule that “In case of failure of title, or where the sale is set aside on account of irregularities in the proceedings which render it void, a bona fide purchaser is entitled to recover the purchase-price from the officer, if the funds are still in his hands.” 23 C. J. 779, § 834. One of the cases cited to sustain this rule is Hightower v. Handlin, 27 Ark. 20. Also there are cases where the purchaser may be subrogated and recover from the debtor the amount which his debt has been decreased. 23 C. J. 779, § 835. And it has been held in other jurisdictions that if a sale is void for the reason that it is founded on a void judgment, one who purchased at the sale without knowledge of such invalidity can recover from the judgment creditor, if he has received the purchase-price paid by him and for which the purchaser received nothing. 23 C. J. 780, § 836. In Edenfield v. McLeod, 66 Ga. 11, it was held that “When a purchaser buys at sheriff’s sale under an execution in his favor as administrator, and he is subsequently ejected by the defendant in fi. fa. because the sale was had under a void execution, he can not maintain a bill in equity against the holder of a senior execution to which the money was applied, the defendant in execution, and the sheriff, for the purpose of compelling them to refund the amounts they respectively received of the proceeds of the sale, by simply alleging fraud and collusion in withdrawing the older fi. fa. from the hands of the sheriff prior to the sale, thus resulting in a sale under the junior process, which was void.”

It is true that a purchaser at a judicial sale who has paid money upon the faith of proceedings regular upon their face occupies the status of a purchaser in good faith. Stevens Hardware Co. v. Bank, 34 Ga. App. 268 (129 S. E. 172). In some cases, such as where there has been fraud and misrepresentation, hidden or secret equities and claims, an innocent purchaser at a sheriff’s sale is to some extent protected. Thompson v. Selcer, 142 Ga. 809, 811 (83 S. E. 965); Edenfield v. Rountree, 33 Ga. App. 444 (126 S. E. 731). In some instances he is subxogated to the rights of the execution creditor against the execution debtor. See Askew v. Patterson, 53 Ga. 212; Hamilton v. Rogers, 126 Ga. 27 (54 S. E. 926); Ashley v. Cook, 109 Ga. 659 (35 S. E. 89); Rogers v. Smith, supra. However, in Carithers v. Venable, 52 Ga. 389, dealing with a sale based upon a judgment against a defendant in attachment, it was said: “If there was no notice the judgment was void, and the sale void. The purchaser took nothing. A purchaser is protected against an irregular judgment, but not a void judgment.” In Southern Cotton Mills v. Ragan, 138 Ga. 504 (75 S. E. 611), it was held that in judicial sales, where the maxim of caveat emptor applies, “The purchaser must look for himself as to the title and soundness of the property sold. . . Such sales are by the court, and there is no one to go back on if the buyer takes nothing.” It was held in McWhorter v. Beavers, 8 Ga. 300, that the purchaser at a sale under execution can not maintain an action against the defendant in execution for so much money paid to his use on failure of title to the property so purchased. Also, it has been held that a purchaser at a judicial sale must comply with his bid, whether the property offered for sale is the property of the defendant in execution or not. Pinkslon v. Harrell, supra. In Shaw v. Walker, 25 Ga. App. 642 (104 S. E. 23), it was not held that an action at law may be maintained by the purchaser at a void sheriff’s sale against the sheriff after he has paid the proceeds over to the plaintiff in execution. In Davis v. Comer, 108 Ga. 117 (33 S. E. 852, 75 Am. St. R. 33), cited and relied upon in the Shaw case, it was properly held that a sheriff’s sale of land under a dormant fi. fa. was absolutely void, just as much so as if there had been no judgment whatever against the defendant in execution, and no process in existence authorizing the sheriff to seize and sell the property of the defendant in execution. However, in that case it was not held that the purchaser at such a sale could have sued the sheriff for the return of his money after it had been paid over to the plaintiff in execution. Moreover, when one buys property at an execution sale the purchase-money is not considered the funds of the purchaser, but the money of the defendant in execution. Lowe v. Rawlins, supra. In Corley v. Jarrell, 36 Ga. App. 225 (136 S. E. 177), it was not held that the purchaser at a void sheriff’s sale can recover his money back from the sheriff after he has paid it over to the plaintiff in execution. The cases cited in the Corley case are not authority for holding that in a case like the one under review the doctrine of caveat emptor is not applicable.

The ruling made in this case, that an action at law can not be maintained by the purchaser at a sheriff’s sale which has been declared void because of a grossly excessive levy, against the sheriff who conducted the sale, the purchase-money having been paid over by him to the plaintiff in execution, is in accord with the doctrine Of caveat emptor as applied in this State.

It follows that the question for determination in this case is properly answered in the negative, and therefore the trial judge erred in directing a verdict for the plaintiff purchaser in this case against the sheriff for the purchase-money paid at the sale, and the court erred in denying the defendant’s motion for a new trial.

Judgment reversed.

Jenkins, P. J. concurs. Stephens, J., dissents.