Joseph Scolly & Co. v. Kbutler

• Decision Date: 31 August 1877
• Court: Georgia Supreme Court
• Parties: Joseph Scolly & Company, plaintiffs in error. v. David K.ButlER, defendant in error.

59 Ga. 850

Joseph Scolly & Company, plaintiffs in error. v. David K.ButlER, defendant in error.

Supreme Court of the State of Georgia

(August Term, 1877.)

Claim. Levy and sale. Estoppel. Before Judge Wright. Mitchell Superior Court. November Adjourned Term, 1876.

Reported in the opinion.

Gurley & Townsend; B. B. Bower, for plaintiffs in error.

W. O. Fleming; James H. Spence, for defendant.

JACKSON, Judge.

This was a claim case, and on the trial the court, on motion of the claimant, dismissed the levy, and the single point *is, was the levy sufficient under section 3740 of the Code.

1. The levy was upon land, and in these words: "Georgia Mitchell county—I have this day levied the within fi. fa. on lots of land numbers five and thirty-six, in the eleventh district. March 17th, 1875. A. G. Stewart, deputy sheriff." Section 3640 of the Code requires that the property shall be plainly described, as well as the interest of the defendant therein. We think that the property is described with sufficient certainty.

The numbers and district of the lots will be construed to mean those numbers in the eleventh district of Mitchell, as the levy begins with the words: "Georgia, Mitchell county." The written words on the fi. fa. constitute the levy, as the property is land, in this state; and those words are "Georgia, Mitchell county, " to begin with, and the levy must have been made there, because those words are part of the levy itself, and hence the land must lay in that county. 50 Ga., 423.

2. But it is said that defendant's interest in the property is not described in the levy; that it dots not appear that he has any interest in it at all, the words "as defendant's property'' being omitted from the levy. The reply seems to be conclusive that the claimant is estopped from excepting to the levy on this ground, for the reason that he himself has sworn that it was levied on as defendant's property. The claim affidavit so states distinctly, and this oath of the claimant, by which the whole case is brought into court for trial, should estop him from a denial of the truth of that oath, if there be such a thing as estoppel in any case. 54Ga., 296. It is true that the case there is one of personal property, and the court intimates that the principle may not extend to real estate. But we hold that where there is but one defendant in fi. fa., and the claim affidavit sets out that the land was levied on as defendant's property, and the exception to the levy is only that the...