Wooten v. Smith

27 Ga. 216

• Court: Supreme Court of Georgia
• Decided: January 15, 1859
• Status: Published

Opinion

By the Court.

Lumpkin, J.

delivering the opinion.

Our conclusion is, to hol-J up the injunction in this case, until the. hearing of the bill. Samuel Lindsey, the Sheriff, has not accounted for the negro levied on by the execution. And until ihatis done, the, presumption of law is, that the fi. fa. was satisfied before it was levied on the land. And if that be so, the purchasers could derive no title from the sale.

The Sheriff admits that he levied on the negro, but says he did not seize him. Why he did not, and what became of him, and why he was not sold, does not appear. We infer that he left him with Cross, the defendant, whose property he was. That does not discharge the Sheriff.

As to the other small execution under which, it is alleged in the answer, the land was also sold, this is altogether new matter, and not responsive to any charge in the bill. And consequently, should not have been considered in determining the motion to dissolve. If true, it will be very material upon the hearing.

Judgment reversed.

McDonald J. absent.