Conley v. Redwine

• Decision Date: 29 January 1900
• Citation: 35 S.E. 92,109 Ga. 640
• Parties: CONLEY et al. v. REDWINE et al.
• Court: Georgia Supreme Court

35 S.E. 92

109 Ga. 640

CONLEY et al. v. REDWINE et al.

Supreme Court of Georgia

January 29, 1900

Syllabus by the Court.

1. Though notice of a sheriff's sale be published once a week for four successive weeks before the day of sale, the advertisement will not meet the requirements of the law if the last publication be made in the same week as that in which the sale is to be had. Where four publications only are made, each must be in a separate week, and each week must precede in point of time the week embracing the day of sale. (a) The decision of this court in Bird v Burgsteiner, 28 S.E. 219, 100 Ga. 486, construed in the light of its facts, does not conflict with what is here laid down, and the language in the opinion which seems to indicate the contrary was obiter.

2. Where, however, the purchaser at a sheriff's sale has no knowledge or notice of insufficiency in the sheriff's advertisement, he will be protected, although he be the plaintiff in execution. It does not, in this case, appear that the purchasers had such notice.

3. A sheriff's sale under a dormant execution is void, and being a mere nullity, presents no obstacle to a sale of the same property on the same day under a valid execution.

4. There was no error in explaining to the jury the history and nature of the case as it appeared from the uncontradicted evidence and the pleadings in the case, the more especially when the judge went no further than was essential to a clear understanding of the issues involved at the trial.

5. Contiguous parcels of land, forming one entire tract, may be levied on and sold as one tract, although the same be composed of fractional parts of different land lots.

6. While the rights of one entitled to the balance of the proceeds of a sheriff's sale after the satisfaction of the lien under which the sale took place should not be prejudiced by the misconduct of a stranger in deterring bidders, yet, if it appeared that the person first referred to really acquiesced in such conduct, and sought to prevent the property from bringing its full value, such person would not, because of the mere misconduct of the stranger, have the right to invalidate or set aside the sale.

7. The mere fact that a principal and agent bid against each other at a sheriff's sale, though their purpose in so doing was to deter other bidders, and get the property at less than its value, would not, in the absence of some proof that the price was really affected by such conduct, because for setting the sale aside.

8. There is no error in requiring counsel to confine his argument to the facts and issues involved in the case.

9. The fact that a sheriff's sale embraced a parcel of land belonging to a third person is not a ground for setting the sale aside at the instance of the defendant in execution, or one entitled to the balance of the proceeds of the sale after the execution was satisfied.

10. Though a tract of land had in fact been laid off into streets and town lots, yet where there were no visible marks on the surface of the tract to indicate the metes and bounds of the lots, and the only thing in the nature of a street appearing thereon was a recognized public road of the county, a levy upon and sale of the entire tract as one parcel was proper and legal.

11. An entry of levy embracing a description of the property levied on, which of itself is insufficient to locate the same, and referring for a more accurate description to a public record is sufficient as to matter of description if the property is accurately described in such public record.

12. The charge of the court was full, fair, and explicit. The evidence amply warranted the verdict, and no error was committed during the progress of the trial which would require a reversal of the judgment refusing to grant a new trial.

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by J. B. Redwine and others against Eliza T. Conley and others. Judgment for plaintiffs. Defendants bring error. Affirmed.

A. A. Manning and T. P. Westmoreland, for plaintiffs in error.

Arnold & Arnold and Rosser & Carter, for defendants in error.

COBB J.

This case brings under review another phase of a controversy which has been before this court in various shapes and at several different times. See Conley v. Thornton, 81 Ga. 154, 7 S.E. 127; Same v. State, 83 Ga. 496, 10 S.E. 123; Id., 85 Ga. 348, 11 S.E. 659; Same v. Maher, 93 Ga. 781, 20 S.E. 647; Same v. Arnold, 93 Ga. 823, 20 S.E. 762; Same v. Buck, 100 Ga. 187, 28 S.E. 97; Id., 102 Ga. 752, 29 S.E. 710; Same v. Redwine, 103 Ga. 569, 29 S.E. 927. The history of the litigation in all of its phases leading up to the present controversy will be found in the cases cited above, and it is unnecessary to repeat it here. The pleadings in the present case brought before the court two sheriff's sales of the same property. The first was had under an execution in favor of D. P. Hill, as executor of Wade Hill, against John L. Conley, and the second was under an execution in favor of Thornton, then controlled by Buck, against John L. Conley. Redwine, the original plaintiff, and the purchaser at the second sale, brought his petition, praying that the first sale be set aside. The wife of John L. Conley, who claimed the property under a deed from her husband, was a defendant in this proceeding, and she, by answer in the nature of a cross bill, sets up that she was the purchaser under the first sale, and prays that the same be confirmed, and that the sale to Redwine be set aside. At the trial it was conceded that the first sale was void, and therefore the only question for decision was whether the second sale was valid. The trial resulted in a verdict in favor of Redwine, and, Mrs. Conley's motion for a new trial being overruled, she excepted.

1. It was insisted that the sheriff's sale at which Redwine became the purchaser was void because the sale was not advertised according to law. The advertisement was published four times in the newspaper, to wit, on Monday, March 15th Monday, March 22d, Monday, March 29th, and Monday, April 5th. The sale was had on Tuesday, April 6th. Section 5457 of the Civil Code provides that notices of all sales by the sheriff shall be published weekly for four weeks, and section 5458, which embodies an act passed in 1891, provides that it shall be sufficient and legal to publish the notice "once a week for four weeks (that is, one insertion each week for each of the four weeks) immediately preceding the day when the *** sale is to take place; and the number of days between the date of the first publication and the *** day when the *** sale [is] to take place, whether more or less than thirty days, shall not in any manner invalidate or render irregular *** the advertisement or order of sale." Prior to the passage of the act of 1891, when the law required sheriffs' sales to be advertised for four weeks, it was held that the word "week" meant a period of time consisting of seven days, and that, to comply with the law, it was necessary that 28 days should elapse between the date of the first advertisement and the date of the sale, and that this lapse of time was sufficient, whether there was embraced therein four complete calendar weeks or not. Boyd v. McFarlin, 58 Ga. 208; Bird v. Burgsteiner, 100 Ga. 486, 28 S.E. 219. As was said by Mr. Justice Little in the opinion in the case last cited: "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, we are bound to conclude also that the week of seven days was not intended to be taken as the period of time in which one publication only of the notice must necessarily be made, because such was the statute as interpreted by the court at the time of the passage of the act; hence the act, in referring to the publication to be made once a week for four weeks, means a calendar week, and, if notice shall be made on any day of a calendar week, that shall be counted as a publication for that week." That the act of 1891 intended that the notice in any one calendar week should be a notice for the week is undoubtedly true, but this was not all that that act required. The notice must be at some time in the week, and there must be four calendar weeks, in each of which there is a publication of the notice of sale preceding the day of sale. The act declares in terms that there must be "one insertion each week for each of the four weeks immediately preceding" the day when the sale is to take place. The week in which the sale takes place is certainly not a week "preceding" the day on which the sale takes place; and it would, therefore, follow that the notice published in such week could not be counted as one of the four insertions necessary to a compliance with the statute. Under this construction of the law, a period of at least 24 days must elapse between the date of the first insertion and the date of the sale. If the first insertion is on Saturday, and the subsequent insertions on any given day of the three following weeks, the period of 24 days elapses between the two. To illustrate: If a sale was to take place on Tuesday, February 6th, the first notice would have to be inserted on Saturday, January 13th. Insertions January 13th, 20th, 27th, and February 3d would be a compliance with the law. If an insertion on a day embraced within the week of sale was allowable, a sale could be had after the lapse of 17 days from the first insertion. For instance, if a sale was to take place on February 6th,...