Stark v. Cummings

56 S.E. 130, 127 Ga. 107, 1906 Ga. LEXIS 756

• Court: Supreme Court of Georgia
• Decided: December 13, 1906
• Status: Published

Opinion

Atkinson, J.

1. When it is sought to set aside a sheriff’s deed upon the ground of excessiveness of the levy, the actual market value of the property should be compared with the amount due upon the fi. fa. In the ease at bar the market value was not ascertainable by testimony as to what such property usually brings at tax sales, the witness testifying further that at other public sales such property usually brought a higher price. Accordingly, it was erroneous for the court, over proper objection urged by the plaintiff, to permit witnesses for the defendant to testify: “At these tax sales, property never sold for its value. The lot in dispute . . sold for about as much as any other similar lot of land sold for at tax sale in the year 1896 in that locality.”

2. The undisputed evidence shows that the land was capable of subdivision into lots of sufficient value to discharge the fi. fa. The amount of taxes and costs was less than $8. The lowest estimate of the value of the entire lot was about $250. Under these circumstances, the levy upon the entire tract was excessive and the sale was void. See, in this connection, Doane v. Chittenden, 25 Ga. 103, and Van Epps’ citations thereunder, especially Williamson v. White, 101 Ga. 276, with cases therein cited; Stark v. Cummings, 119 Ga. 35, and cit. The sheriff’s deed being void, the verdict for the defendant is without evidence to support it.

Judgment reversed.

All the Justices concur, except Cobh, P. J., disqualified.