Fretwell v. Doe ex dem. Morrow

7 Ga. 264

• Court: Supreme Court of Georgia
• Decided: August 15, 1849
• Docket: No. 49
• Status: Published

Opinion

By the Court. —

Warner, J.

delivering the opinion.

[1.] The first objection to the decision of the Court below is, that the Sheriff’s deed, executed by John Smith, as Sheriff of Newton County, who was the successor in office of Alfred Livingston, who sold the land at Sheriff’s sale, was allowed to be« read in evidence, without first showing an order of the Court, directing Smith, as the successor in office of Livingston, to execute the deed to the purchaser of the land. The lot of land was sold by Livingston, under execution, while in office, who failed to execute a title to the purchaser. Smith, the successor of Livingston, executed a deed to the purchaser after coming into office. It is said Livingston’s successor could not do this without an order of Court. The 48th section of the Judiciary Act of 1799, answers the objection. By that section of the Act it is declared, “that the succeeding Sheriff shall make titles to the purchasers for all property sold under execution and not conveyed by his predecessor. Prince, 431.

The Act is mandatory in its terms, and an order of the Court could not enlarge or increase the duty and obligation of the succeeding Sheriff, to make a title to land sold by his predecessor to the purchaser.

[2.] The next objection to the Sheriff’s deed being read in evidence is, that it is invalid, inasmuch as it recites that the former Sheriff seized and sold the land under a Justice’s Court Ji. fa. and that a Sheriff has no authority to seize property under a Justice’s Court fi. fa. By the 18th section of the Act of 1811, Constables are authorized to levy Justice’s Court fi. fas. upon land, and deliver over the same to the Sheriff of the County, with a return of the property levied on, who shall proceed to sell the same, with such formalities as are prescribed for the sale of real estates. Prince, 506.

When a Justice’s Court execution hasbeen duly levied on land, and delivered over to the Sheriff, according to the provisions of the Statute, the Sheriff is lawfully seized of the same, for all the purposes of making sale thereof. The seizin of the Sheriff necessarily results from the operation of law, to enable him to sell the property and convey the title to the purchaser.

[3.] The third objection is, that the loss of the Justice’s Court fi. fa. under which the land was sold, was not sufficiently accounted for to dispense with its production on the trial. Did the evidence on the trial establish a reasonable presumption of the loss of the instrument % We think that it did, according to the rule established by this Court, in Doe ex dem. Vaughn vs. Biggers, 6 Ga. Rep. 194.

• The Magistrate’s docket of the district in which Morrow, the defendant in execution, lived previous to the date of the deed, was exhibited to the Court, which contained three cases against Morrow in favor of Benham, in which judgments had been entered and executions issued; there were two fi.fas. shown, neither of which had a levy of the land upon it. It was also shown by Williamson and Clark, that they had made search in the Clerk’s and Sheriff’s offices, and could not find the other fi.fa.-, that they had also called on the Magistrates who entered the judgments, and also the Bailiff, who lived in the district in which the land is situate, and the Sheriff in office at the'time of the .sale of the land, without success. Reasonable diligence was shown by the plaintiffbelow, to find the paper, by examining the places where, by legal presumption, it might be deposited, if in existence, without being able to learn any thing of it, -which, in our judgment, afforded a reasonable presumption of its loss or destruction.

Let the judgment of the Court below be affirmed.