concurring.
Upon a bare doubt, I do not Teel justified in dissenting from a judgment of affirmance. In .this case, however, my doubt is so near a, conviction, that while I yield it, my sense of duty obliges me to disclose its existence, and to indicate the grounds of it. If the sheriff proceeded to sell illegally, and discovered his error before accepting the money and making a conveyance, lie was, I think, at liberty to decline (o consummate the sale and take its fruits. 42 Ga., 629. On the assumption that-he made a mistake of law, he was not too late to correct the mistake — certainly not, as against the movants in this rule. They had not required him to sell. Their execution had not been levied, nor was he in any default for not levying it. Their whole claim was upon the proceeds of the sale. ' Eor them to have now any rights against the sheriff, there must have been either an illegal sale which was complete to the extent of executing a conveyance or actually receiving the purchase money, or a legal one which, if not complete, was in a state of incompleteness by reason of some improper act or omission of the sheriff, occurring after the property was exposed to sale and bid off. Thus far, my mind is free from all doubt; but here the doubt begins: Was the sale, as fay as it -went, legal % Ought the sheriff to have consummated it, by executing a conveyance, and collecting the purclia.se money ? The levy was upon the land-itself ; .that is, upon an estate in severalty. The sale was of an undivided half; that is, upon an estate in common. The precise estate sold had neither been levied upon nor advertised. If it had been, persons might have attended and competed at the *418sale, whose attendance was not induced by the advertisement as published. Thus, the departure, in malting the sale, from the terms of the levy and advertisement, may have occasioned injury to the defendant in fi.fa., and to other interested parties. . The Code, § 3640, is express, that the entry of levy shall plainly describe, not the property only, but also the amount of the defendant’s interest therein. Until the claim was interposed, there had been no step taken which looked towards selling an undivided interest. Could the sheriff, after receiving the claim, legally expose to sale an estate in common, without stopping to cut down the levy or to re-advertise ? If he had on his hands a levy that, by reason of the interposition of a claim, he could not execute, as a whole, with respect to a single foot of the land embraced in it, should he not have returned the papers to the court for a trial of the claim, as directed by section 3736 of the Code, at the same time postponing the sale, as directed by section 3727 ? Or, if this was not his duty, should he have received the claim at all, as it did not affirm title in the claimant to the property levied upon, but only to an undivided estate or interest therein? Throughout the claim laws (Code, section 3725 to 3746), is not the word property used in the sense of thing, and never in the sense of interest or estate ? And is the remedy afforded by the claim laws applicable, where the claimant or claimants do not claim the thing itself, but only a joint, interest in it with the defendant in execution ? Suppose one-half or one-tentli of a horse, or of any like property, to be claimed, what is the sheriff to do ? "What is an administrator or a trustee to do in similar cases ? It would certainly tend to great confusion, for officers or agents of the law to sell a less estate in things than the proprietor really owned, or to sell a part of his interest at one time and the balance at another. It is not clear, because less property can be sold than is levied upon and advertised, that a less estate can be sold. To cut up goods or lands into lots or parcels; is not uncommon ; but to produce a divided ownership by legal pro*419cess is, and ought to be, of rare occurrence. If a claim can be used to arrest the sale of an undivided half, when the whole is levied upon, would it not be.better to sell nothing until it is ascertained what estate ought to be sold ?