Orr v. Brown

5 Ga. 400

• Court: Supreme Court of Georgia
• Decided: August 15, 1848
• Docket: No. 45
• Status: Published

Opinion

By the Court.

Warner, J.

delivering the opinion.

The object of the complainant’s bill is, to enjoin the sheriff of Pike county, from making a title to the premises purchased by Brown, one of the defendants, at a sheriff’s sale, and to set the same aside; and if that cannot be done, then the complainant prays, that the terms of the contract consummated, as be alleges, by the first sheriff’s sale to Prothro, may be specifically performed. Prothro, as the record shews, bid off the land for the s.um of $1200 00, at the first sheriff’s sale, but refused to comply with the terms of the sale, and the land was subsequently re-sold, and purchased by Brown, the plaintiff in execution, for the sum of five hundred dollars.

[1.] To so much of the bill as prays a specific performance of' the first sheriff’s sale by Prothro, it is a sufficient answer to say, that the Act of 19tlr Dec., 1831, provides an ample and adequate remedy for the complainant. By that Act, it is declared, “ that any individual who may become the purchaser of any real or personal estate, at any sale which shall hereafter be made at public outcry, by any executor, administrator, guardian or sheriff, and shall fail, or refuse to comply with the terms of such sale, when required so to do, shall be liable for the amount of,such purchase money, and it shall be at the option of such executor, administrator, guardian or sheriff, either to proceed against such purchaser, for the full amount of the purchase money, or to resell such real or personal estate, and then to proceed against the first purchaser, for the deficiency arising from such re-sale; and in case of sheriff’s sales, such suit may be brought in the name of the sheriff, for the use of the defendant, or plaintiff, in execution, or any other person in interest, as the case may be.” The second section of the Act provides, that no note, or memorandum in writing, shall be necessary to charge the purchaser at such sale. Prince Dig. 471.

[2.] With regard to the charge of fraud, made by the complainant, for the purpose of setting aside the last sheriff’s sale, it is true, there is a general allegation in the bill, that the sale was fraudulent, but by whom the fraud was committed, or what particular acts of fraud were perpetrated, the record is silent. It is not sufficient to give a Court of Equity jurisdiction, much less to authorise it to interpose its strong arm of injunction, by making a general charge of fraud against a defendant. The complainant should state specific facts, that the Court may be enabled to judge whether the same constitute fraud. Story's Eq. Plead. 211, section 251.

The only charge which implicates Brown, the purchaser at sheriff’s sale, is that he “ threw doubts upon the title of the defendant in execution.” What did he do at the sale? Did he make false representations as to the defendant’s title, or did he state the truth in regard to it ? There is no issuable fact, charged by the complainant, in relation to the conduct of Brown at the sale. How could he come prepared at the trial, to prove he did not throw doubts upon the title, unless the 'complainant had alleged what particular acts were done, or declarations made by him, at the sale, which had the effect to cast doubts upon the title. We forbear to express any opinion as to the validity ol the title of the defendant in execution, as shewn by the exhibits to the complainant’s bill, as we are all of the opinion, the judgment of the Court below was properly exercised, in refusing to grant the injunction. Let the judgment of the Court below be affirmed.