Seagraves v. Kelley
| Decision Date | 16 March 1970 |
| Docket Number | No. 2,No. 45157,45157,2 |
| Citation | 121 Ga.App. 412,173 S.E.2d 885 |
| Parties | D. G. SEAGRAVES, for use v. Guy KELLEY et al |
| Court | Georgia Court of Appeals |
O. J. Tolnas, Athens, for appellant.
Harry N. Gordon, Athens, for appellees.
Syllabus Opinion by the Court
After foreclosure by Sun Insurance Office Ltd., as the holder of a purchase money mortgage against J. H. Porterfield, a fi. fa. was issued and levied December 29, 1967 upon a harrow in possession of the defendant in fi. fa. and a corn header found in the possession of Gus Kelley. Kelley, with J. R. Whitehead as surety, executed a forthcoming bond under Code § 39-804 and kept possession of the corn header. The sheriff advertised in the official gazette of the county all of the property for sale on the first Tuesday in February, 1968, and within the hours of sale on that day publicly read the advertisement and sold the harrow, but because the obligors in the bond failed to produce the other property at the time and place of sale, as was required in the forthcoming bond, it could not be sold. The receipts from the sale of the harrow were applied against the accrued costs, and the sheriff, for the use of the plaintiff in fi. fa. brought suit against the obligor and his surety on the bond seeking to recover the unpaid balance of the principal, interest and costs under the mortgage fi. fa., alleging that the market value of the property which had not been produced exceeded that amount.
Defendants answered, admitting execution of the bond, but denying any breach of it because of a lack of demand on them for production of the property at the time and place of sale.
The case was tried before a jury, and the court submitted specific questions for answer by the jury, to-wit: (1) whether there had been any demand upon defendants for production of the property at the time and place of sale and (2) whether there had been any breach of the bond, and, (3) if so, what the value of the property was. Questions 1 and 2 were answered in the negative, and because the court had instructed that in the event of negative answers to these questions answer to question 3 would be unnecessary, it was not answered. Judgment was entered for the defendants, and plaintiff appeals. Held:
1. Since no personal demand on the obligors in a forthcoming bond for production of the property is necessary, the advertising serving that purpose, it is immaterial that the jury answered the first question in the negative.
Nor does it matter that counsel for the plaintiff in fi. fa. may have assented to the submission of this question to the jury. If the lack of a demand had been formally admitted it would have been immaterial; even that could have worked no estoppel against the plaintiff, for a demand was simply unnecessary. Whether the jury answered in the affirmative or in the negative could not have altered the legal status. The bond was breached when the property was not produced at the time and place of sale-with or without a demand for its production. The question was immaterial and irrelevant to the issues in the case, and the answer was likewise irrelevant.
Even if the bond had been conditioned to deliver the property at the time and place of sale 'when required by (the sheriff),' it was unnecessary to prove a personal demand for the property, the advertisement being a sufficient notice to the party. Thompson v. Mapp, 6 Ga. 260; Carr v. Houston Guano & Whse. Co., 105 Ga. 268, 270, 31 S.E. 178; Stroud v. Hancock, 116 Ga. 332, 42 S.E. 496; Hogan v. Morris, 7 Ga.App. 232(1), 66 S.E. 550; Early v. Hampton, 15 Ga.App. 95(3), 82 S.E. 669; Rish v. Clements, 21 Ga.App. 287(1), 94 S.E. 318; Arnold & Son v. Rhodes, 26 Ga.App. 86, 89, 105 S.E. 453; Hill v. George, 47 Ga.App. 272(6), 170 S.E. 326; Continental Cas. Co. v. Bibb Chevrolet Co., 49 Ga.App. 523(3), 176 S.E. 418. Nor would it excuse production of the property by the obligors in the bond if the sheriff had promised them at the time of their signing the bond that he would not require production at the courthouse, but would sell it where it was, or that the property was cumbersome and expensive to move. King v. Castlen, 91 Ga. 488(2), 18 S.E. 313; Scruggs v. Bennett, 34 Ga.App. 131, 128 S.E. 703. And see Rowland v. Page, 4 Ga.App. 269(1), 61 S.E. 148.
2. It was stipulated by and between the parties at the beginning of the trial that 'the property involved in this case was duly and legally advertised in the Danielsville Monitor, which is the newspaper in which sheriff's sales are advertised (for Madison County) in the issues of January 12, 19 and 26 and February 2, 1968.' This stipulation was sufficient to obviate any showing of notice otherwise or of any other demand on the defendants. 1 The undisputed testimony of the sheriff that the property was not produced at the time and place of sale demanded a finding of a breach of the condition of the bond. For this reason the jury was not authorized to answer the second querry in the negative.
3. The contention of appellee that from a conversation that took place between the sheriff and Mr. Kelley at the time of the levy the jury was authorized to draw an inference that the sheriff did not intend to make a valid levy is without merit. Mr. Kelley testified that at that time he told the sheriff 'There it is, take it,' but that he didn't move it 'because I guess he didn't have a way of hauling it away.' However, he admitted the execution and posting of the forthcoming bond in which it is recited that 'D. G. Seagraves, the Sheriff as aforesaid, hath lately levied a fi. fa. issued from the Superior Court of Madison County in favor of Sun Insurance Office, Ltd. against J. H. Porterfield on' the described property. The obligors in the bond are thus estopped to deny the levy or to attack its validity. Cohen v. Broughton, 54 Ga. 296(1); Crine v. Tifts & Co., 65 Ga. 644(1); Drawdy v. Lttlefield, 75 Ga. 215(5); Pearce v. Renfroe Brothers, 68 Ga. 194(5a); Stroud v. Hancock, 116 Ga. 332, 42 S.E. 496, supra; Hilton & Dodge Lbr. Co. v. Clements, 108 Ga. 791, 33 S.E. 951; Pharr v. Estey Piano 3 Organ Co., 7 Ga.App. 262(4), 66 S.E. 618; Hartshorn v. Bank of Gough, 15 Ga.App. 167(2), 82 S.E. 805. Smith v. Camp, 84 Ga. 117, 124, 10 S.E. 539, 540. '(T)he giving of a forthcoming bond estops a claimant and the surety on his bond from denying the completeness and sufficiency of the seizure of the property made by the levying officer.' Oliver v. Warren, 124 Ga. 549, 551, 53 S.E. 100, 101. The defendant gave a forthcoming bond. That bond, by its terms, estopped him from saying there had been no sufficient levy * * * he would be estopped to deny the recitals therein in reference to the levy and the existence of the property.' Smith v. Davis, 3 Ga.App. 419, 422, 60 S.E. 199, 201. As the principal in the bond is estopped, there can be no doubt that his surety and privy in contract is likewise estopped. Stroud v. Hancock, 116 Ga. 332, 336, 42 S.E. 496, supra.
4. A judgment for the defendants was unauthorized, and it was error to overrule the motion for new trial on the general grounds.
5. Error is enumerated on the overruling of plaintiff's objections to evidence elicited from defendants' witness that the property previously had been sold at a sheriff's foreclosure sale under a second mortgage.
Salmon v. Lynn, 16 Ga.App. 298(2), 85 S.E. 203, and citations. Rowland v. Page, 4 Ga.App. 269(3), 61 S.E. 148, supra. Evidence concerning the status of the title was irrelevant to any issue in the case and thus inadmissible. The objections were proper and should have been sustained.
6. The mortgagor, testifying on direct examination, asserted that he had purchased the property in question from a dealer when it was new for $1,833.80, had used it in his farming for three years, had taken good care of it and that when he last saw it the equipment was in excellent condition, and that it had a market value on February 6,...
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