Parks v. Williams

• Decision Date: 15 February 1912
• Citation: 73 S.E. 839,137 Ga. 578
• Parties: PARKS v. WILLIAMS.
• Court: Georgia Supreme Court

73 S.E. 839

137 Ga. 578

PARKS v. WILLIAMS.

Supreme Court of Georgia

February 15, 1912

Syllabus by the Court.

Where an attachment has been sued out in a justice's court against a nonresident, and no notice has been served as provided by Civil Code 1910, § 5103, and there has been no bond made, or appearance and defense, a general judgment cannot lawfully be rendered against the defendant; and if such a judgment be rendered, and an execution be issued accordingly and levied, the sale is void. Carithers v Venable, 52 Ga. 389; Kimball v. Nicol & Davidson, 58 Ga. 175.

A defendant in such an execution may estop himself from denying the validity of the sale by knowingly accepting a balance of the purchase money left in the hands of the officer after discharging the executions of the plaintiff in attachment, or directing its payment to another creditor, under a settlement with him. Tribble v. Anderson, 63 Ga. 31 (6); Reichert v. Voss, 78 Ga. 54, 2 S.E. 558; Ray v Pitman, 119 Ga. 680, 46 S.E. 849; Civil Code 1910,§ 6077.

(a) If one takes a deed from a defendant so estopped with knowledge of the facts, he will likewise be estopped; or he may so participate in the transaction as to estop himself, though the deed to him may have been delivered before the actual disposition, by the agreement or direction of the defendant in fi. fa., of the fund left in the hands of the officer making the sale.

Where in a statutory action to recover land held under a sheriff's sale and conveyance, it appeared that the sale was void, because based on executions issued upon general judgments, where only special judgments could lawfully have been rendered, but the purchaser set up that the plaintiff was estopped from denying the validity of the sale and the purchaser's title thereunder, and introduced evidence to support such contention, there was no error in admitting in evidence, in connection therewith, the sheriff's deed.

There was sufficient evidence to authorize the submission to the jury of the issue of estoppel and fraud.

(a) The charge was not altogether accurate or exact. It was especially erroneous to charge that, if the plaintiff should recover, the land sued for would be "subject to the purchase money and the amount paid by the defendant for repairs, taxes, insurance, interest on the purchase money at 7 per cent., less reasonable rents for the property." But, in view of the fact that the jury did not find for the...