Solomon v. Peters

37 Ga. 251

• Court: Supreme Court of Georgia
• Decided: December 15, 1867
• Status: Published

Opinion

Walker, J.

1. The Court very properly declined to hear in vacation the motion to dismiss the bill. Such a motion involved a decision of the merits of the bill, in other words a trial of the merits of the case as made by complainant, and should be heard only at term time; or in vacation by virture of an order passed in term time, authorizing the hearing in vacation.

2. The alleged equity of the bill as amended consists in the charge of a failure by the sheriff to give the notice of the levy as required by sec. 3596 Rev. Code. There is no charge that Solomon, the purchaser, had any notice of such failure, nor indeed that he has done anything to make him otherwise than a bona Jicle purchaser. Such being the case, the failure of the sheriff to notify the tenant cannot affect him.

3. It is sufficient for the purchaser that the sheriff had competent authority to sell, and did sell, and that the defendant in jifa, had title to the property sold. The law requiring notice to be given, property advertised, etc., is directory to the officer. Iiis neglect to observe these requirements may subject him to a suit for damages at the instance of any party injured thereby, but will not affect the title of a bona fide purchaser at his sale. The purchaser may presume that the sheriff has taken all the steps required by law to make the sale valid. He has the authority to sell, the law prescribes his duties, he swears to execute all processes placed in his hands according to law, and the bona fide purchaser may rely upon his fidelity in the performance of his duties. Brooks vs. Rooney, 11 Ga. R., 423. There being no charge of fraud against Solomon, he was entitled to the property purchased, and the Court should have dissolved the injunction.

Judgment reversed.