Harris v. Black

• Decision Date: 17 June 1915
• Docket Number: 362.
• Citation: 85 S.E. 742,143 Ga. 497
• Parties: HARRIS ET AL. v. BLACK ET AL.
• Court: Georgia Supreme Court

85 S.E. 742

143 Ga. 497

HARRIS ET AL. v. BLACK ET AL.

No. 362.

Supreme Court of Georgia

June 17, 1915

Syllabus by the Court.

In a suit on a sheriff's official bond, allegations that an execution showed on its face that the judgment on which it was based was dormant, and that this was known to the sheriff, but he nevertheless levied the execution on land of the plaintiffs, sold it, and ejected them from possession set out a cause of action.

Where it was alleged that the administrator of the estate of an intestate died, and no other administrator was appointed that there was no necessity for any further administration and no debt against the estate, that the heirs were all sui juris, and had taken possession of the real estate, and that the sheriff knowingly made a void levy on the land under an execution based on a dormant judgment, sold the property, and evicted the heirs therefrom, this showed a right of action by the heirs, and under Civ. Code 1910, § 12, such heirs could bring the suit in their own names on the official bond of the sheriff.

If a sheriff made a void sale of land in the possession of heirs of a decedent whose estate was unrepresented and as to which no representation was necessary, and evicted them, and delivered possession to the purchaser, but the heirs negligently allowed the purchaser to remain in adverse peaceable possession until he obtained a title by prescription, in a suit by them on the sheriff's bond they could not recover the value of the land, with mesne profits, on the ground that they had lost the title.

(a) The allegations showed no good reason for the failure to sue for the land until prescription had ripened.

Where suit was brought on the official bond of a sheriff on account of a wrongful levy and sale, and an eviction under the void sale, and where the allegations were sufficient to authorize a submission to the jury of the good or bad faith of the sheriff, under Civ. Code 1910, § 299, it was erroneous to dismiss the action as a whole, although the special damages sought to be recovered might not be recoverable.

Under the statutes of this state and the former decisions of this court, a suit for a breach of the official bond of a sheriff, if brought within 20 years from the breach, will not be barred because an action sounding in tort or contract on account of his breach of duty, against the sheriff alone, not on the bond, might be barred.

Error from Superior Court, Early County; W. C. Worrill, Judge.

Action by J. M. Harris and others against L. E. Black and another. Judgment for defendants, and plaintiffs bring error. Reversed in part and affirmed in part.

On March 15, 1913, J. M. Harris and others brought suit against L. E. Black, former sheriff of Early county, and the Fidelity & Deposit Company of Maryland, as surety on his official bond. The petition as amended alleged, in substance, as follows: The plaintiffs are the sole heirs at law of J. M. Harris, deceased. At the date of his death he was in possession of a described tract of land containing about 250 acres. The administrator appointed on his estate died, and there is now no administrator, nor is there any necessity for an administrator, the plaintiffs being sui juris, and there being no debts against the estate. At an election held in 1898 Black was elected sheriff for a term of two years from January 1, 1899, and gave a bond with the Fidelity & Deposit Company of Maryland as surety. On March 4, 1899, during his term of office, he levied upon the land by virtue of an execution which had issued from the superior court on November 2, 1881, based upon a judgment rendered at the October term, 1881, of the court, in favor of one Robinson against the administrator of Harris. Upon this execution no entry was made from its date until April 8, 1890. The property was exposed for sale and knocked off to certain purchasers. A deed was made by the sheriff on September 12, 1900, and he placed the purchasers in possession on that date, having ejected the plaintiffs therefrom. The execution was dormant, and not legally enforceable against the estate of Harris; and this appeared on the face of the execution, and was known to the sheriff when he made the levy and sold the property. The land cannot now be recovered by the plaintiffs, for the reason that the purchasers at the sale and those claiming under them have acquired a good title thereto by prescription. The plaintiffs did not ascertain that the execution was dormant, and that the levy, sale, and deed made by virtue thereof were void, until on or about January 1, 1913, too late to bring a suit against the purchasers of the land, or those claiming under them, for the purpose of recovering it. By reason of the wrongful conduct of the sheriff in making the levy and sale the official bond given by him was breached. The property was of the value of $10,000, and the rents, issues, and profits since the sale have been of the yearly value of $300. The defendants demurred to the petition on several grounds, one of them being that it appeared on the face thereof that the action was barred by the statute of limitations. They also objected to the allegation to the effect that the plaintiffs did not ascertain that the execution was dormant, and that the levy, sale, and deed made by the sheriff were void, until on or about January 1, 1913, too late to bring an action to recover the land from the holders of it. The court sustained this objection and the demurrer, and dismissed the action. The plaintiffs excepted.

Rambo & Wright, of Blakely, for plaintiffs in error.

Little, Powell, Hooper & Goldstein, of Atlanta, for defendants in error.

LUMPKIN, J. (after stating the facts as above).

1. After a judgment has become dormant, the execution based on it is not enforceable by levy, and a sale thereunder is void. Welch v. Butler, 24 Ga. 445; Davis v. Comer, 108 Ga. 117, 33 S.E. 852, 75 Am.St.Rep. 33; Conley v. Redwine, 109 Ga. 640, 35 S.E. 92, 77 Am.St.Rep. 398. In McDougald v. Dougherty, 12 Ga. 613, it was held that the levy of an execution against one person upon property in the possession of another, and not subject thereto, was a trespass. In Hall v. Lyon, 37 Ga. 636, where a clerk had erroneously issued executions for cost, but they were apparently regular on their face, it was held that the sheriff was not a trespasser because of levying them. In the opinion Chief Justice Warner said:

"It may be stated, as a general legal proposition in regard to the liability of officers executing process, that when the process is void upon the face of it, it will never afford protection to the officer executing it, but he is liable to an action as well as the party obtaining it; but when the process is apparently good and regular on the face of it, and can be avoided only by some extrinsic matter, then the officer is excusable, and the party only liable, for the officer can judge only from what is apparent on the face of the process."

In Boyd v. Merriam, 53 Ga. 561, Trippe, J., after citing the case of McDougald v. Dougherty, supra, said:

"If the levy itself did not constitute a trespass, the sale and delivery of possession by the sheriff to the purchaser would complete it."

The petition alleged that the execution showed on its face that the judgment was dormant, that this was known to the sheriff when he made the levy and sold the property, and that he ejected the plaintiffs and put the purchaser in possession. This showed a case of trespass and a breach of the sheriff's official bond.

2. The plaintiffs alleged that they were the heirs of the former owner of the lot, whose administrator was the defendant in execution; that the administrator was dead, and there was no further administration on the estate and no necessity therefor, there being no debts, and all the heirs being sui juris; and that they were evicted by the sheriff, who placed the purchaser at the void sale in possession. Upon the death of the owner of the real estate the title vests immediately in his heirs at law, subject to administration. Civil Code 1910, § 3929. While an administrator continues as such, the right to recover possession of the estate from third persons is solely in him; but if there be no administrator, the heirs at law may take possession of the lands, or may sue therefor in their own right. Civil Code 1910, § 3933. Under the allegations of the petition, the plaintiffs were in lawful possession of the property, and an unlawful interference with their possession gave them a right of action. Civil Code 1910, § 12, provides that a suit on an official bond may be brought in his own name by any person aggrieved by the official misconduct of the officer. By section 291 it is provided that the principal and sureties on an official bond are bound, among other things--

"for the use and benefit of every person who is injured, as well by any wrongful act committed under color of his [the principal's] office as by his failure to perform, or by the improper or neglectful performance of those duties imposed by law."

There can be no doubt that the levy, sale, and placing of the purchaser in possession were done under color of the office of sheriff. Luther v. Banks, 111 Ga. 374, 36 S.E. 826.

3. The sale and deed were made in 1900. Suit was brought on the bond in 1913. The plaintiffs sought to recover the value of the property and the rents, issues, and profits thereof during that time, alleging that a prescriptive title had ripened against them, and that they had thus lost the property. Prescriptive title involves something more than a levy, sale and placing of the purchaser in possession. It includes the holding of exclusive, adverse possession for the statutory period, peaceably, accompanied by a claim of right, and not...