Bird v. Burgsteiner
| Decision Date | 18 March 1897 |
| Citation | 28 S.E. 219,100 Ga. 486 |
| Parties | BIRD v. BURGSTEINER. |
| Court | Georgia Supreme Court |
Syllabus by the Court.
1. An advertisement of sale of land by a sheriff, which is made once in each calendar week for four weeks, is, since the act of 1891 (Acts 1890-91, vol. 1, p. 241), rendering legal certain notices, etc., good, as to time, without reference to the number of days which may elapse between the day of the first insertion and the day of sale.
2. A levy on land is void for uncertainty, which fails to describe the land levied upon with such precision as to inform a purchaser what he is buying, and enable the officer selling to place the purchaser in possession.
Error from superior court, Effingham county; R. Falligant, Judge.
Action by James A. Burgsteiner, for the use of H. B. Strange against Walter J. Bird. Judgment for defendant, and plaintiff brings error. Reversed.
A. C Wright, for plaintiff in error.
J. G. & D. H. Clark, for defendant in error.
The official report shows the facts.
1. Counsel for plaintiff in error, by his brief filed here withdrew from our consideration all of the various grounds contained in the affidavit of illegality, except the fourth, fifth, and seventh; and our decision will be confined to a review of the questions raised by those grounds, and whether the court below erred in sustaining a general demurrer thereto. There were eight specific grounds set out in the affidavit, in each of which it was claimed that the execution had issued or was proceeding illegally; and we are not to be understood, in failing to give them notice here, as passing in favor of the questions raised. We have simply confined consideration to those only which were not abandoned on the argument here. The fourth and fifth grounds of the affidavit which appear in the statement of the case raise the question of the time necessary, under the law, for notice by advertisement of a sale of land by the sheriff, and allege that the sheriff is proceeding to sell under an advertisement of less than four weeks. To determine this question, it will not be necessary to refer specifically to legislation on the subject prior to the act of 1891. Formerly thirty days' advertisement was required, and later advertisements of such sales made once a week for four weeks met the requirements of the statute. But by an act approved October 21, 1891 (Acts 1890-91, vol. 1, p. 241), which is a very general and comprehensive enactment on the subject, previous laws were changed. It is provided in this act that "it shall be sufficient and legal to publish the same once a week for four weeks (that is, one insertion each week for each of the four weeks) immediately preceding the term or day when the order is to be granted or the sale is to take place, and the number of days between the date of the first publication and the term or day when the order is to be granted or the sale to take place, whether more or less than thirty days, shall not in any manner invalidate or render irregular the said notice, citation, advertisement, order or sale." It is seldom that more emphatic language is found in a legislative enactment, and it is rarely the case that one act seeks, by the multitude of terms used, to prevent any misconception of the legislative will. In the case of Boyd v. McFarlin, 58 Ga. 208, this court, in construing section 3647 of the Code of Georgia, which required notices of sheriffs' sales of land to be published weekly for four weeks, held that the statute was not met by publication for a shorter period of time than twenty-eight days; in other words, that, when the statute fixed the period at once a week for four weeks, it meant to use the term "week" as a period of time consisting of seven days, and that, when there should be a publication weekly for four weeks, it meant once in each seven days, so as to give notice of such sales for twenty-eight days before the sale should take place. This was the law, as construed, at the time the act of 1891 was passed; and that act was intended to change existing law, so that, if a notice of such sale should be made once a week for four weeks, such advertisement would be sufficient, without reference to the number of days which might so elapse. In ascertaining the legislative intent as expressed by the act, ...
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