Others v. Error

• Decision Date: 31 July 1852
• Docket Number: No. 58.,58.
• Citation: Others v. Error, 11 Ga. 423 (Ga. 1852)
• Parties: John W. Brooks and others, plaintiffs in error. vs. Charles Rooney and another defendants in error.
• Court: Georgia Supreme Court

11 Ga. 423

John W. Brooks and others, plaintiffs in error. vs. Charles Rooney and another defendants in error.

No. 58.

Supreme Court of the State of Georgia

JULY TERM, 1852.

Ejectment, in Muscogee Superior Court.Tried before Judge Powers, at November Term, 1852.

The heirs at law of Martin Brooks, deceased, brought suit for a lot of land in Muscogee County.The defendants claimed under a Sheriff's sale of the land, as the property of Martin Brooks.

The defendants on the trial offered in evidence a deed made by John C. Mangham, as Sheriff, reciting that by virtue of a fi. fa. issued from the Inferior Court of said County, (of Muscogee) at the suit of James C. Leonard against Martin Brooks, he had lately seized, (this tract of land,) and after being advertised according to law, he did, on the sixth day of June, in the year of our Lord 1843, at the place of public sales in the said County of Muscogee, expose the same at public outcry, when Kenneth McKeagie, &c."

Also, a fi. fa. from the inferior Court of said County, in favor of James C. Leonard against Martin Brooks, upon which there was entered a levy on this tract of land, signed by " Theobald Howard, D. Sheriff."Also, a return of the sale and the disposition of the proceeds, which was signed by no person.

Plaintiffs' counsel objected to the admission of the deed in evidence because it was made by John C. Mangham, and the levy was made by Theobald Howard, D. Sheriff, and there was noevidence that he was, or acted as Deputy Sheriff.Also, because it did not appear in said deed, nor was there any evidence that the said sale was advertised at the Court house door and two or more public places, and was made between the hours of ten o\'clock, A. M. and four o\'clock, P. M. as required by law.

All of which objections, the Court overruled, and plaintiffs' counsel excepted.

Plaintiffs' counsel also objected to the fi. fa. going in evidence, on the ground that it did not appear, nor was there any proof that the lot in dispute was sold, as there was no date or signature to the entry making a return of the sale.All which objections the Court overruled, and this decision was excepted to by counsel for plaintiffs.

Plaintiffs' counsel requested the Court to charge the Jury, that if they believed from the evidence, that at the time of the levy and sale, Martin Brooks, the defendant in fi. fa. was dead, and there was no representation upon his estate, and the heirs were all minors, the sale was void.

The Court refused so to charge, and plaintiffs excepted.

On these exceptions error is assigned.

W. Dougherty, for plaintiffs in error.

Wiley Williams, for defendants.

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

This was an action of ejectment, brought by the heirs at law of Martin Brooks, deceased, to recover lot No. 134, in the City of Columbus.The plaintiffs proved on the trial, that they were the children and only heirs of the decedent, who died in possession of the premises in dispute, and who had lived thereon for several years previous to his death; that the rent of the lot was worth $ 100 per annum, and that the defendants were in possession at the time the suit was instituted.

The testimony being closed on the part of the plaintiffs, the defendants offered in evidence a deed from the Sheriff of Muscogee County, for the property, together with the original fi. fa. and entries thereon, under which it was sold.The deed was objected to, on the ground that it was made by John C. Mangham, as Sheriff, when the levy on the execution was endorsed by Theobald Howard, as Deputy Sheriff; and there was no proof to show that Howard, who made the levy, was the deputy of Mangham, who conveyed the title.It was farther objected to the deed, that it did not appear from its recitals, nor was it established by aliunde proof, that the sale of the lot was advertised at the Court house door, and two or more public places in the County; and that the sale was made between 10 o\'clock, A. M. and 4 o\'clock, P. M. as the Statute requires.

The execution was objected to for the reason, that it did not appear from the entry thereon, nor was there any other legal proof of that fact, that the lot in controversy had been sold at all, as there was no date nor signature by the officer to the entry of sale on the fi. fa.The defendants' counsel, to obviate this alleged omission, proved that the endorsement of sale, as well as the distribution of the proceeds, was in the handwriting of Theobald Howard, the Deputy Sheriff.The Court admitted the testimony, and to this decision counsel for the plaintiffs excepted.

The return of the levy and sale of this land is made by.Theobald Howard, as Deputy Sheriff.The deed is made by John C. Mangham, as Sheriff.This is a recognition of the Deputy's authority, and a ratification of his act.And this would have been sufficient to protect the purchaser, had Howard acted without any regular appointment.

The acts of a deputy de facto, are good as to third persons.1 Hawks. 329. 10 N. H. Rep. 167. 4 Ma. R. 527. 5 Ibid, 295. 9 Mass. R. 231. 10 Ibid, 290. 15 Ibid, 180. 5 Pick. R. 487. 5 Smed. & Marsh.573.

The next complaint is, that it does not appear, either by the recitals in the deed itself, or by extrinsic proof, that the land was advertised and sold according to law.

The deed recites that John C. Mangham, the Sheriff, seized the lot as the property of Martin Brooks, and after being advertised according to law, that he did, on the 4th day of June, 1843, at the place of public sales in said County expose the same at public outcry.

The case of Clements against Henderson, (4 Ga. R. 148,) is relied on as authority for the plaintiff in error.That was an administrator's deed, and the two cases are consequently clearly distinguishable.In cases of sale under special power, as that of a Tax Collector, and by order of Courts of limited jurisdiction, as Courts of Ordinary, the execution of the power must show upon its face, that the Statute has been strictly complied with.But it is otherwise with sales made by Sheriffs under judgments of Courts of general jurisdiction.Munic vs. The President and Selectmen of Natchez, 4 Smedes & Marshall, 602.

This reasoning applies to the third exception, namely: that it did not appear from the entry itself on the fi. fa. nor was there any proof that the lot in litigation was sold, as there was no date nor signature to the entry on the fi. fa.It was shown that the endorsement of the sale and of the distribution of the proceeds, was in the handwriting of Theobald Howard, who made the sale.

But independently of this, the errors of omission or of commission on the part of the Sheriff, especially after the sale is made, and over which the purchaser has no control, cannot affect the validity of his title.Whether the return of the execution be imperfect or not made at all, is a matter of no consequence to the purchaser, who pays his money and receives the...