McWhorter v. Beavers

8 Ga. 300

Opinion

By the Court.

Warner, J.

delivering the opinion.

[1.] The only question presented by the record in this case is, whether, in a judicial sale, made by a Sheriff, of the property of a defendant in execution, there is any warranty of title to the property so sold, to the purchaser thereof? The property of a defendant in execution is seized by the Sheriff, by virtue of judicial process, against his will, and sold under the authority of the law.

There is no warranty of title to the purchaser, implied, on the part of the defendant in execution, or by the Sheriff. The maxim of caveat emptor applies to the purchaser of property at such sales. The Monte Allegre Tenant claimant, 9 Wheaton’s Reports, 616. Yates vs. Bond, 2 McCord’s Reps. 382. Murphy vs. Higginbottom, 2 Hill’s S. C. Rep. 397.

From the facts in this case, the plaintiff below cannot maintain ‘his action on the ground, of mistake. Davis vs. Hunt, 2 Bailey’s Rep. 418. Neither can the plaintiff recover, for so much money paid to the use of the defendant in execution, for the reason that the property was seized and sold, against his will, and there exists no privity in law, between the defendant in execution, and the purchaser at Sheriff’s sale, inasmuch as there was no warranty of title, either express or implied.

Let the judgment of the Court below be reversed.