Methvin v. Bexly

18 Ga. 551

Opinion

By the Court.

Benning, J.

delivering the opinion.

[1.] This bill, as it stands, has in it no equity. It contains no allegation, going to show the perpetration of any fraud on> the purchaser, or going to show the invalidity of the judgments on which the fi. fas. were founded. The only thing it complains of is, that the defendant in the fi. fas. had no title to the property sold under the fi. fas. and purchased by the-complainant. But this is no ground for an action, either at Law or in Equity. If it had been, Martin, the defendant in they?, fas. himself, who had sold this land to the complainant, and who had made him a quit claim deed to it, and put him in possession of it, and who had himself received the purchase-money for it, the complainant, on failure of the title,, would have had no right of action against him, Martin. In such a case, the maxim of caveat emptor would have governed. (Broom’s Leg. Max. 354, 366, and cases cited.)

And the sale by the Sheriff could amount to no more than would such a sale as this by the defendant in fi. fa. if such a one had been made by him, have amounted to. The Sheriff,, in such a sale, acts as agent of the defendant in fi. fa. to convey such title as the defendant has, if he has any, to the purchaser. He has no power to bind such defendant, by any warranty of title or other covenant.

The Court below was right, therefore, as we think, in sustaining the demurrer for want of equity, to this bill.

But as the Counsel for the plaintiff asks leave to amend th&bill by allegations, to the effect that Martin, the defendant in the fi. fas. was a fictitious person,- and that Riley, the plaintiff" in the fi. fas. induced the complainant to .purchase the land! by fraudulent representations or fraudulent conduct, we think-, the complainant ought to have the leave; and that if he cam-, so amend his bill, it ought to be re-instated.