Brumby v. Harris

33 S.E. 49, 107 Ga. 257, 1899 Ga. LEXIS 46

• Court: Supreme Court of Georgia
• Decided: April 20, 1899
• Status: Published

Opinion

Simmons, C. J.

It appears from the record that Mrs. Arabella H. Brumby, in July, 1889, borrowed from Hugh N. Harris the sum of $1,500, and to secure the payment of the same made and executed to him a deed to a certain city lot in the City of Atlanta. The authorities of the City of Atlanta had the street on which this lot was situated paved, and assessed Mrs.

Brumby for her portion of the assessment. The lot fronted 47 feet on the street, with a depth of about 140 feet. It appears that Mrs. Brumby failed to pay this assessment, and on August 5, 1892, the clerk of the city council of Atlanta issued a fi. fa. against the lot and “Mrs. Ada Brumby,” directing the marshal of the city to levy upon and sell “a certain city lot in the City of Atlanta, fronting 20 feet on Georgia avenue, said lot being known as number 201 on said Georgia avenue, according to the street numbers.” According to the entry of levy made by the marshal, this land was “levied on as the property of Mrs. Ada Brumby to satisfy a fi. fa. in favor of the City of Atlanta agaiiist said lot and against Mrs. Ada Brumby.” There was also an entry of service on the tenant in possession on Oct. 24, 1892. Under this execution, the marshal sold the entire lot fronting 47 feet on the street. On the day of the sale the property was purchased by Venable Brothers, who, just before the expiration of the right of redemption, sold the property to T. M. Brumby. Harris seems to have had no knowledge of any of these proceedings. He claimed that inasmuch as the execution, the levy, and the advertisement designated the property as that of Mrs. Ada Brumby, while his deed was from Arabella H. Brumby, he could not have been put upon notice that it was his land which was advertised for sale. Upon ascertaining the facts, he filed an equitable petition in the superior court of Clarke county, where Mrs. Brumby resided, against her and T. M. Brumby, praying that the sale be set aside upon the ground that the marshal exceeded his power in levying upon 47 feet on the street when the execution directed him to levy upon 20 feet only, that no notice was given either to the owner or to the tenant in possession of the property, and that the levy was excessive. Venable Brothers, who purchased at the tax sale, and Loyd, the marshal who sold the land at that sale, were not .made parties, but no objection upon this ground was made on the trial, the only demurrer being on the ground that the petition was multifarious because it sought to obtain a judgment on a note against Mrs. Brumby and to cancel the deed made by Venable Brothers to T. M. Brumby, and also that there was a misjoinder of parties. On the trial of the case the jury returned a verdict rendering judgment upon the note and cancelling the deed made by Venable Brothers to T. M. Brumby. A motion for 'a new trial was made by the latter, and was overruled by the court. Movant excepted.

1. The levy and sale by the marshal of forty-seven feet on the street, when the execution directed him to levy upon twenty feet only, was clearly illegal. He had no power or authority under this fi. fa. to levy upon any 47-foot lot, and the levy upon such a lot rendered the sale void. The assessment was for the improvement of that particular property, and the execution issued against that property. Assessments for the improvement of a street are sustained by courts only because •of benefit to the particular property, and the executions issued therefor do not run generally against the other property of the owner not situated upon the street. Hayden v. Atlanta, 70 Ga. 817, 822; Speer v. Athens, 85 Ga. 49. We think, therefore, that the sale was void and was rightly so declared at the instance of Harris, who had no notice thereof and who held the legal title to the property. .

2. Under the procedure act of 1887, Civil Code, §4833 et seq., the superior court has jurisdiction in one proceeding to enforce legal and equitable rights and remedies. Therefore, where a petition seeks judgment upon a note and a special lien upon land against one who conveyed the land to secure the payment of the note and also against one who has purchased under a void tax sale, the petition is not demurrable on the ground of multifariousness. The court had jurisdiction to render a common-law judgment upon the note and decree a special lien upon the land, and also jurisdiction to set aside a void sale and cancel the deed made pursuant thereto. DeLacy v. Hurst, 83 Ga. 223. For this purpose it was proper and necessary to join Mrs. Brumby and T. M. Brumby in the action. If the sale was void the title was still in Mrs. Brumby, but it was neces-sary to have T. M. Brumby a party, because he holds the deed of the marshal, or rather of the party who bought from the marshal. As before stated, no objection was made to the pro•ceeding on the ground that Venable Brothers and the marshal were not made parties. The question not having been made in the court below by the defendants, this court will not make it here.

Judgment affirmed.

All the Justices concurring, except Cobb, J., ■who was disqualified.