Carmichael v. Strawn

27 Ga. 341

• Court: Supreme Court of Georgia
• Decided: January 15, 1859
• Status: Published

Opinion

By the Court.

Benning J.

delivering the opinion.

[1.] Neither of the two objections to the deed, was good, as we think. A similar objection to the first, was held by this Court, in Hollingsworth vs. Dickey, (24 Ga.) not to be good.

[2.] As to the second, the entries on the Ji.fa., show, that the whole $52 for which, the Sheriff sold the land, was properly accounted for by him, was paid by him, partly to costs and commissions, partly to the plaintiff in the fi. fa. The recital in the deed, that fifty dollars was paid for the land, is thus shown to have been, a mere mistake — the word, two, having been accidentally omitted, after the word, “fifty.”

Besides, does an objection of this sort, lie in the mouth of the plaintiff, who was neither a party nor a privy, to the fi. fa.,for, although, she claimed under Berry, the defendant in the fi. fa., yet she did so, by a deed of Berry’s, made long before the Sheriff’s sale.

An entry, of “no property,” includes the entry of, no personal property.

The jury could, hardly, have believed, that the purchaser from the Sheriff, had paid only $50. There were the entries on the fi. fa., to show, that he had paid the whole $52. If, then it were true, that the first request was one that was right-in itself, yet as no new trial was moved for, this Court ought not to grant a new trial, on the refusal of that request.

The Court, we think, was right in refusing the second request.

[3.] It is true, that the plaintiff in the case, claimed under a purchase from Berry, the defendant in the fi. fa. aforesaid, which was an older fi. fa. than such purchase, and, that such purchase took place more than seven years before the levy and sale of the land by the Sheriff for the $52 ; but, it is also true, that at the time of this sale by the Sheriff, neither the purchaser, nor, indeed, any one else, had ever been in possession of the land. And the statute gives the exemption, only in cases in which the purchaser from the defendant in they?, fa., has been in “peaceable possession,” for seven years before the levy. Pr. Dig. 252.

The regular registration of the deed of the purchaser, obtained from the defendant in the fi. fa., is not equivalent to “peaceable possession” of the land by him. At least, the statute does not say so, and the statute is that which we have to go by.

Judgment affirmed.

McDonald, J. absent.