Pinkston v. Harrell

• Decision Date: 26 November 1898
• Citation: 31 S.E. 808,106 Ga. 102
• Parties: PINKSTON . v. HARRELL et al.
• Court: Georgia Supreme Court

31 S.E. 808

106 Ga. 102

PINKSTON .

v.HARRELL et al.

Supreme Court of Georgia.

Nov. 26, 1898.

Execution Sale—En-tut op Bid—Affidavit oF Illegality.

1. A purchaser at a judicial sale must comply with his bid, whether the property offered for sale is the property of the defendant in execution or not. It follows, therefore, that, where such purchaser is the plaintiff in execution, the sheriff will, upon a proper proceeding by the defendant in execution, be compelled to enter the amount of the bid as a credit upon the execution.

2. It is settled law of this state that an affidavit of illegality is not a remedy for an excessive levy.

(Syllabus by the Court.)

Error from superior court, Quitman county; H. C. Sheffield, Judge.

Action by J. G. Pinkston against J. M. Harrell and others. Judgment for defendants, and plaintiff brings error. Reversed.

Hickey & Fort, for plaintiff in error.

W. C. Worrill, for defendants in error.

COBB, J. Pinkston brought his petition against Guilford, sheriff, Harrell, former sheriff, and C. G. Mercer, alleging that J. W. Mercer had obtained a judgment against him for $400 principal, with interest from February 21, 1890, at 7 per cent. per annum, and that the execution issued on such judgment was controlled by C. G. Mercer; that Harrell, as sheriff, had levied such execution upon an undivided one-half interest in lot of land 128, in the Eighth district of Quitman county, and that the same was sold to C. G. Mercer for the sum of $372, which amount should have been entered as a credit upon the execution, but was not, the sheriff refusing to make the entry; that petitioner had paid upon the execution after the levy, and before the sale, $268, which, together with the amount bid at the sale, was more than sufficient to satisfy the execution, and the sheriff refuses to turn over to him the excess in his hands: that Guilford, as sheriff, had levied the same execution upon the whole of lot 128, in the Twenty-First district of Quitman county, and as soon as petitioner was apprised of this he placed an affidavit of illegality in the hands of the sheriff, In which it was alleged that the fi. fa. was pro ceeding illegally for the following reasons: (1) That the amounts paid before the sale, added to the amount bid at the sale, were sufficient to pay off the fi. fa. before the second levy was made; (2) because the levy is excessive. The sheriff disregarded the affidavit of illegality, and sold the land to C. G. Mercer for $50, which was a grossly inadequate price, the land being well improved, and worth at least $1,000. The lots described in the two levies are the same. After the first sale petitioner paid to C. G. Mercer sums aggregating $78.79, which should be paid back, as at the time of their payment the execution was fully paid off. Petitioner has been compelled, by the wrongful conduct of defendants, to employ counsel at an expense of $150. Waiving discovery, he prays that the sheriff be enjoined from giving Mercer a deed, or from putting him in possession under and by virtue of the second sale, and that Mercer be enjoined from entering into possession, or exercising any right of possession, thereunder; that the second sale be declared void, and any deed made thereunder be canceled and set aside; and that Harrell, former sheriff, be required to turn over to petitioner the amounts realized from the first sale in excess of the amount due on the execution; and for general relief. By amendment, the petitioner struck from the petition the name of Harrell as a party, and all allegations as to damage by him, and the prayer for relief as against him; and further amended the petition by substituting $276 for $372 as the amount for which the property was sold at the first sale, and by striking all allegations of indebtedness on the part of C. G. Mercer to the plaintiff. The execution under which the levies were had is attached to the petition as an exhibit, and upon it is an entry of the...