Collier v. Perkerson

• Decision Date: 31 August 1860
• Citation: 31 Ga. 117
• Parties: COLLIER. vs. PERKERSON et al.
• Court: Georgia Supreme Court

31 Ga. 117

COLLIER. vs. PERKERSON et al.

Supreme Court of the State of Georgia

AUGUST TERM, 1860.

Debt, in Fulton Superior Court. Tried before Judge Bull, at the April Term, 1860.

This case came up and was heard, upon the following state of facts, to wit:

On the 18th day of July, 1854, Patterson M. Hodge executed and delivered to Meredith Collier a mortgage deed for "City Lot, No. 49, in block number 2, in the city of Atlanta, being part of lot of land No. 51, in the 14th district of originally Henry, then Fulton county, which city lot fronts on Ivy street, and containing one-half acre, more or less, " for the purpose of securing the payment of a promissory note, made by the said Hodge, payable to said Collier or bearer, dated the 18th of July, 1854, and due one day after date, for six hundred dollars. The mortgage was duly recorded in the office of the clerk of the Superior Court of Fulton county, on the 1st day of August, 1854.

After the date of the mortgage, Thomas W. Connally, as administrator of Cornelius M. Connally, deceased, recovered several judgments, in a Justice's Court, of said county of Fulton, against the said Patterson M. Hodge, as principal, and Ambrose B. Forsyth, as security.

From these judgments A. fas. were issued and levied upon the mortgaged premises, as the property of the said Hodge.

When the property was exposed to sale by the Sheriff, notice was publicly given that the same would be sold, subject to the mortgage lien of the said Collier, and at the sale, the said Collier, being the highest and best bidder, the property was knocked off to him, at the price of nine hundred and thirty-one dollars.

Immediately after the property was knocked off, the said Collier stated, that he had bid for the same under a mistake; that he thought that the money arising from the sale would first be applied to the payment of the sum due on his mortgage, and the balance to the judgment creditors, but upon being informed that he could claim no part of the money on his mortgage, he declined taking the property, and stated to the sheriff that he could sell it over again, as he, Collier, had bid for it under a misapprehension of his rights.

The property was forthwith sold again, and purchased by Willis Carlisle, at and for the sum of three hundred and seventy-five dollars.

The second sale occurred before the sheriff left the block, and before any of the bidders had gone away from the place of sale, the only bidders being the said Collier and Carlisle, and the only bid made at the second sale being that made by Carlisle, who was the brother-in-law of said Hodge.

Thomas J. Perkerson, then sheriff of Fulton county, instituted an action of debt in the Superior Court of said county, to recover, for the use of the said Hodge, the difference between the amounts of the first and second sale.

On the trial of said action, the plaintiff introduced the fi. fas., with the levies on the lot, and also proved the regular advertisement of the sale, and that the two sales occurred, and that the property was bid off, first by Collier, and secondly by Carlisle, as before stated, and that the notice and statements were made by Collier, as to his mortgage, which are herein before detailed, and closed his case.

The defendant, Collier, then offered in evidence the note and mortgage aforesaid, his counsel stating at the same time that he was prepared and expected to prove that the property sold for its full value, taking the amount of the mortgage into consideration; and that, so soon as the said Collier was informed by an attorney that he was bidding under a misapprehension, he did not make another bid, and that the said Willis Carlisle, the other bidder, was also laboring under the same mistake, and that so soon he was informed of the mistake, he did not make another bid.

The Court below rejected the mortgage, and refused to allow the defendant to make the proofs thus offered and proposed to be made, and the defendant excepted.

The defendant then moved the Court to continue said case, for the purpose of enabling him to file a bill in equity, to relieve himself from the mistake so made, as aforesaid, stating to the Court that he was prepared to prove that he bid at said sale under a misapprehension of his legal rights, and that the said Hodge, for whose use the action was brought, had sustained no damage by the defendant\'s failure to take said property at his bid, because the same brought its full value at the second sale, being sold subject to his mortgage.

The Court overruled the motion and refused the continuance, holding that the defendant was not entitled to any relief in Equity, from the facts stated; to which ruling and refusal the defendant excepted.

The evidence being closed, the jury, after receiving the charge of the Court, returned a verdict in favor of the plaintiff, for the sum of five hundred and fifty-six dollars, with costs of suit.

The defendant assigns error upon the several rulings and decisions of the Court, and seeks, by the writ in this case, a reversal of the same.

Ezzard & Collier, for the plaintiff in error.

J. M. & W. L. Calhoun, for the defendant in error.

By the Court. —Jenkins, J., delivering the opinion.

This action was instituted under an Act of the General Assembly, approved December 27, 1831, entitled: "An Act defining the liability of purchasers, at executor's, guardian's, administrator's and sheriff's sales, when they refuse, or fail to comply with the terms of such sales."

The defence set up was, that the defendant bid off the property under a mistake of law, as to his rights. In support of his defence, the defendant offered proof that he and the only other bidder both bid under the impression that the proceeds of the sale would be applied first to the satisfaction of defendant's mortgage—the lien of which was older than that of the judgment under which the sheriff sold the property, but which had not then been foreclosed—and afterwards to the satisfaction of the judgment. He did not know (though he and all present were cognizant of the existence and the superior lien of his mortgage) the legal consequence of hisbid would be, the payment of the full amount so bid, to be appropriated, first, to the satisfaction of the judgment creditors\' demand, and then to the uses of the defendant in execution, leaving him, as his only means of satisfying his mortgage, recourse upon the very property which he had already purchased at its full value.

The Court refused to receive this evidence, and also refused to continue the cause, that he might seek redress in equity. And to these rulings, denying him relief in either jurisdiction, defendant excepted. The refusal to continue, with a view to change of jurisdiction, was proper, for the reason that, if plaintiff's claim was unfounded, defendant's remedy at law was...