Hawkins v. Johnson

62 S.E. 285, 131 Ga. 347, 1908 Ga. LEXIS 83

• Court: Supreme Court of Georgia
• Decided: August 18, 1908
• Status: Published

Opinion

Fish, C. J.

(After stating the facts.)

1. The levies were not "illegal and void because of indefinite and insufficient description of the lands mentioned in them,” nor was the sheriff’s advertisement under which the land 'was sold, or the deed which he made in pursuance of the sale, open to this objection. The land levied upon was described in the first entry of levy as “all that tract of land in said county on which Nathan Hawkins . . lived at the time of his death, containing sixteen hundred and sixty-six and three fourths acres, subject to the widow’s dower in seven hundred and one acres, all in Baldwin county; . . adjoining lands of Mrs. Little, Bose, and others.” While “A levy on land is void for uncertainty which fails to describe the land levied upon with such precision as to inform a purchaser what he is buying, and enable the officer selling to place the purchaser in possession” (Bird v. Burgsteiner, 100 Ga. 486, 28 S. E. 219), yet, so far as description is concerned, a levy in contemplation of law is sufficient if it enables one to locate the property and to identify it when found. Wiggins v. Gillette, 93 Ga. 20, 23 (49 S. E. 86, 44 Am. St. R. 123); Collins v. Boring, 96 Ga. 360 (23 S. E. 401). So, the property levied upon was sufficiently described in the first entry of levy, as the description was sufficient to enable a prospective purchaser and the officer selling to locate and identify the property. It located the land in. Baldwin county, and as being “all that tract in said county on which Nathan Hawkins . . lived at the time of his death, containing sixteen hundred and sixty-six and three fourths acres,” and “adjoining lands of Mrs. Little, Bose, and others;” and the language of-exclusion, “subject to the widow’s dower in seven hundred and one acres,” tended to aid the description, as any one desiring to bid on the land might ascertain from what tract of land belonging to Nathan Hawkins'at the time of his death dower had been set apart to his widow. It is obvious that it would be. an easy matter for any one, sufficiently interested in the subject to contemplate bidding at the sheriffs sale, to ascertain upon what tract of land, in Baldwin county, Nathan Hawkins lived at the time of his death, especially when informed by the levy that such tract adjoined the lands of Mrs. Little, Bose, and others, and that dower had been assigned therefrom to the widow of Hawkins; and he could like* wise easily ascertain, from the record in the office of the clerk of the superior court, just what portion of such tract had been set apart as dower, as the law requires the plat of the “survey of dower” to be recorded, with the return of the dower commissioners, in that office. Civil Code, §4701. But the contention of counsel for plaintiffs in error, on this point, in their brief, is, that the de« scription in the levy “was too indefinite and uncertain,” in that “it failed to put prospective bidders on notice of . . what interest in [the] lands was to be sold;” that “it did not appear whether the fee of the entire Stovall place or the fee of the 1100 odd acres only was to be sold.” This is certainly not a sound criticism of the first levy. That levy, as we have seen, was upon “all that tract of land in said county on which Nathan Hawkins . . lived at the time of his death, containing sixteen hundred and sixty-six and three fourths acres, subject to the widow’s dower in seven hundred and one acres.” This clearly was a levy upon the entire tract described, and could not be construed to be a levy upon only that portion of it not included in the plat of the survey of the dower. The words, “subject to the widow’s dower in seven hundred and one acres,” clearly indicate that the fee in the whole tract was levied upon and was to be sold, subject only to the life-estate of the widow of Nathan Hawkins in that portion of such land which had been set aside to her as dower. They were very apt words for this purpose. The widow’s dower in seven hundred and one acres was simply her interest therein, which was a life-estate, and, subject to this life-estate, the fee in the whole original tract from which the dower had been carved was levied upon. This seems clear and definite.

Why the sheriff should have deemed it necessary to make a second levy we can not understand. However, judging from the language of the second entry of levy, he seems to have been under the impression that as the progress of the former levy had, after advertisement thereunder, been arrested by an affidavit of illegality until the time fixed by the advertisement for the sale had passed, the first levy had become stale or dormant and needed to be revived, or, as he termed it, "renewed." It is obvious, though, that the first levy was in full force and effect when the second was made, as it never had been dismissed, and the second levy- can not be considered as being equivalent to a dismissal of the former one, for it was clearly intended to be in aid of the first. The most that can be claimed as to the effect of the second entry of levy is that it is explanatory of the first, and that the two entries should be construed together. There is no inconsistency in the descriptions of the property levied upon in these two entries of levy. Instead of there being such inconsistency, the description contained in the. first is, by reference thereto, in the second, made a part of the description in the latter. The second levy describes the land embraced in the first levy as "the ‘Stovall place’ of sixteen hundred and sixty-six and three fourths ¿eres,” that is, that the land described in the original levy as that tract of land in Baldwin county on which Nathan Hawkins lived at the time of his death is the tract called the "Stovall place." This simply somewhat enlarges the description contained in the first levy, affording an additional means by which to locate and identify the land levied upon. The same may be said in reference to the substitution in the second levy of the words "seventeen hundred acres more or less" for the words "sixteen hundred and sixty-six and three fourths acres," which appeared in the first entry. The clause in the second entry of levy, “excepting" from the levy upon the entire tract of seventeen hundred acres, more or less, "the widow’s dower therein of Nathan Hawkins’ widow," does not necessarily conflict with the expression, “subject to the widow’s dower in seven hundred and one acres," vhich appears in the first levy. "The widow’s dower” in the land levied upon was the widow’s life-estate in that portion of such land •which had been set apart to her as dower. Bnt even if these two clauses of exclusion, when construed separately, seem to conflict, when they are construed together, as they should be, they unmistakably refer to the legal right of dower in the land set apart to the widow, and not to the dower tract itself.

Counsel for plaintiffs in error cite McAfee v. Arline, 83 Ga. 645 (10 S. E. 441), and Wells v. Dillard, 93 Ga. 682 (20 S. E. 263), to support their contention that the reversion in the dower land was not sold. In the first of these cases it was held that “The clause, in a deed, ‘except the dower of fifty acres and fully described in deed given to Corbin Banking Co.; the said tract or parcel of land hereby conveyed ' . . contains all the dwellings and gin-house except the old original dwelling-house/ is strictly an exception.” There the grantor excepted from his conveyance, not the widow’s dower in the tract conveyed, nor the dower in fifty acres of such tract, but he described the land excepted as “the dower of fifty acres,” which was the same as if he had said, “except the dower land of fifty acres.” The word “dower” there was descriptive of land, and not of an interest in land. The second case cited is on the same line. There an administrator conveyed to the widow of the intestate “lot 154, in 31st dist. Marion County, except the widow’s dower and ten acres off southeast comer,” and the deed recited that the widow “bought all of said lot except the widow’s dower and ten acres off of the southeast corner of said lot.” The widow at the time of the sale was in possession of a definite -portion of the lot, which portion had been previously laid off as her dower; and it was held, that “the proper construction of the conveyance is, that both this portion and the ten acres in the southeast corner were wholly excepted from the sale made by the administrator, the phrase ‘widow’s dower/ as used in the conveyance, meaning, not the legal right of dower, but the parcel of land itself over which that right had been asserted and exercised.” Had the description in the conveyance been, “all of lot 154, in the 31st dist. of Marion county, except the widow’s dower therein,” and if the deed had recited that the widow “bought all of said lot except the widow’s dower therein, we apprehend that the ruling as to the effect of the deed would have been different. Eor the widow’s dower in a described tract of land must mean either a life-estate in the whole of such tract, or such an estate in a designate# and described portion thereof. In the present case, however, the meaning of the words, in the second entry of levy, “excepting the widow’s dower therein of Nathan Hawkins’ widow,” if not precisely clear from the words themselves, is made clear by reference to the first levy, of which the second was, by its very terms, intended to be simply a renewal.

The sheriff’s advertisement, introduced by plaintiffs, was not ""void because of indefinite and insufficient description of the lands” therein mentioned. The description, ""all that tract of land of seventeen hundred acres, more or less, known as the Nathan Hawkins home or "Stovall place,’ adjoining lands of Mrs. Little, Howell Rose, Mrs. Kenan, and others, except the widow’s dower or life-estate in seven hundred and one acres thereof including the dwelling-house and appurtenances,” was clearly sufficient for prospective purchasers to locate and identify the land to be sold, and it also clearly indicated that the whole interest in the entire tract of about seventeen hundred acres was to be sold, except the life-estate of the widow in the dower lands. The language, “except the widow’s dower or life-estate in seven hundred and one acres,” plainly shows that it was the life-estate of the widow, in that portion of the tract set apart as her dower, which was excepted from the sale to be had under the levy, and not the dower tract itself. This advertisement was certainly perfectly consistent with the first levy, and it was not at all inconsistent with the second one, when it is construed, as it should be, in connection with the first. The sheriff’s deed followed the language of this advertisement, and therefore there was no conflict between the description in the deed and the description in the advertisement, and none between the description in the deed and those in the levies. The fact, to which counsel for plaintiffs in error call attention in their brief, that the dower tract actually consisted of only 556 acres, instead of 701 acres, as indicated in the levies, the advertisement and the deed, is immaterial; for, as we have shown, it was not the dower tract which was excepted in these writings, but the widow’s life-estate therein; and if she in fact only had a dower, or life-estate, in 556 acres, then it was only this interest which was excepted. Even if it could be held that, under the levies, the advertisement, and the deed, a life-interest in the widow in 701 acres of the land was excepted, the result, in this case, would be the same, as after her death the whole or complete legal title to the entire original tract of land which had been levied upon, and sold by the sheriff to Thomas Johnson, would be in the plaintiffs, as trustees under the will of Johnson, the fact that the plaintiffs held whatever title he had in his lifetime being shown by documentary evidence introduced by them and uncontested by the defendants. This documentary evidence it was not necessary to set out in the statement of facts preceding this opinion, as the questions presented and relied on by plaintiffs in error did not involve its discussion.

The sheriff’s advertisements of sale, introduced by defendants, have not been considered, for the simple and sufficient reason that the land was not sold under these advertisements or either of them. Bach of them was functus officio, by lapse of time, when the land was finally exposed for sale by the sheriff and sold by him. The sale took place on the first Tuesday in February, 1873, in pursuance of an advertisement that it would be sold ‘on that day, dated December 30, 1872. No bidder, or prospective bidder,, at that sale was concerned in an advertisement dated April 4,. 1871, giving notice that on the first Tuesday in May thereafter certain property would be sold by the sheriff, nor in an advertisement dated December 1, 1871, of property to be sold on the first Tuesday in-January, 1872, although each of these advertisements may have been intended to be based upon the identical levy under which the sale advertised for the first Tuesday in February, 1873, was to take place. The two advertisements introduced by defendants were wholly irrelevant and immaterial.

2. The exceptions to the exclusion of the testimony of J. C. Hawkins and that of S. W. Hawkins, offered by defendants for the purpose of contradicting the return of the sheriff as to the property sold under the execution and the deed which he executed to the purchaser at such sale, were not well taken. The return of the sheriff as to the sale, entered on the fi. fa., was, so far as material here, as follows: "Feb. 4, 1873. The tract of land above levied on, called ‘ Stovall place,’ was this day sold according to law, to . . Thomas Johnson, at the bid or price of nine hundred and five dollars,” etc. From this entry it appears that the whole tract of land, called "Stovall place,” as.levied on, was sold by the sheriff. If the return of the sheriff on the execution had been that "The tract of land/ called ‘ Stovall place’ was this

day sold/’ etc., such return, standing alone, would clearly mean that all the interest of the defendant in execution in such tract, or any portion of the same, had been sold; most assuredly it would mean that no distinct and separate part of the land itself had been excepted from the sale. But the return stated that "The tract of land above levied on, called ‘Stovall place/ was this day sold,” etc., and, construed in the light of the levy or levies, this means that the tract of land known as “StovaE place” was sold as levied on, that is, subject to the widow’s dower in a portion of such tract. The description, "The tract of land above levied on, called ‘Stovall place/” necessarily includes the whole tract; and parol evidence that 556 acres thereof, which had been set aside as the widow’s dower, was not sold would directly contradict the return of the sheriff as to the sale. Such evidence would also contradict the deed which the sheriff made to "the purchaser at the sale, which, as we have seen, purported to convey this entire tract of land, “except the widow’s dower, or life-estate in seven hundred and one acres.” In Parler v. Johnson, 81 Ga. 254 (7 S. E. 317), it was held: "The sheriff’s entry upoh the fi. fa. and his deed executed in pursuance thereof, after the lapse of more than twenty years are better evidence than the parol testimony of a single witness as to what property was sold. And the entry is not traversable by third persons upon the trial of an action against them for the premises.” In the opinion, at page 259, Chief Justice Bleckley said: “One witness testified that the land actually sold by the sheriff was not that embraced in the sheriff’s return and in his deed of conveyance; that the reversion in the land covered by the widow’s dower was not sold. More than twenty years had elapsed; and surely the recoEeetion of this one witness was not sufficient to match and master official documents like these. The defendants in the action wanted to traverse the return, that is, make up a collateral issue denying its truth. The court declined to allow this, and we suppose correctly, for we never heard of the like. They who proposed the traverse were not parties to the cause in which the return was made.” It will be seen that the court there passed upon two questions in reference to an attack upon the return of the sheriff as to the sale under the execution. The first was as to the sufficiency of the parol evidence — apparently introduced without objection— to overcome this return and the deed made in pursuance thereof. • The second was as to the right of persons not parties to the cause in which the sheriff’s return was made, to traverse such return. Under the ruling upon the first question, if, in the present case, the court had permitted J. C. Hawkins, one of the defendants, to testify that he was present at the sheriff’s sale in question, and heard the, sheriff state that the dower lands were not to be sold, such testimony could not have changed the result of the trial, as the evidence in the case would have demanded a -verdict in favor of the plaintiffs; for here we have the testimony of a single witness as to what property was sold at a sheriff’s sale, offered more than thirty years after such sale, to contradict the return of the sheriff and the deed which he made to the purchaser at that sale. Under the ruling on the second question, persons who were not parties to the cause in which the return of the sheriff was made can not traverse the return. Under the decision in Jinks v. American Mortgage Co., 102 Ga. 694 (28 S. E. 609), such a sheriff’s return, “so long as it stands unchallenged upon the record, is presumptively correct;” and, in the absence of a traverse thereof, is conclusive upon the parties to the case, and of course, it must follow, is conclusive upon those claiming under a party to the case. In the opinion Mr. Justice Cobb, after citing decisions of this court, to the effect that “The entry of a sheriff on process in his hands is generally not traversable;” but “Such entry may be traversed, however, for fraud or collusion;” and that “The code ‘widened the laws of traverse.as to returns of service,’” said: “But the returns of sheriffs and other levying officers upon final process in their hands are still governed by the law as it -stood before the code was adopted. . . As long as the entry of the sheriff reciting a sale at an amount more than that due on the execution stands upon the records unimpeached and unchallenged, such entry is conclusive upon the plaintiff in execution. If the entry is false, the officer making it is liable in damages to any one injured thereby. If it was made fraudulently or collusively, it may be attacked and set aside at the instance of any one who is the victim of such fraud or collusion.”

We'think it necessarily follows from these two decisions that the court rightly excluded the parol evidence offered to contradict the sheriff’s return of the sale under the execution and his deed made in pursuance thereof. Under the first decision, third parties can not traverse the return of tbe sheriff; and under the second, such return is conclusive upon a party to the cause until it is traversed upon proper ground, and consequently must be conclusive upon those holding under him. Our ruling, of course, applies to the rejection of the testimony of S. W. Hawkins as- to a statement made, in his presence, to his mother, by an attorney for the plaintiff in execution, which testimony was otherwise inadmissible as an effort to contradict the levy entered upon the fi. fa., by parol evidence. According to the testimony of this witness, which appears in the record, he might have been “a little over 15 years of age” when he heard the statement in question, but it is doubtful whether he was even that old, and about thirty-five years had elapsed since he heard it.

There being no error in any of the rulings complained of, the judgment of the court below is

Affirmed.

All the Justices concur.