concurring specially. The authorities have been *487well and exhaustively presented in the majority opinion, in which judgment I concur. The only reason I feel constrained to add anything to what has been there said is that I believe the ruling in Shaw v. Walker, 25 Ga. App. 642 (supra), should either bé more fully distinguished, or else be overruled. Precedents as made by decisions being for guidance in the conduct of subsequent trials, we should be ever ready to set our own house in order, so that no trial court may be in doubt as to what rule the appellate court has adopted.
Whatever might be the distinction recognized by some authorities between “judicial sales” and “sales under execution,” the rule in this State seems well established that the doctrine of caveat emptor applies with equal force to each. Our dissenting brother in terms recognizes that the doctrine of caveat emptor applies to a purchaser at a sheriffs sale. Accordingly, whatever the rule of caveat emptor must be taken to mean under the statutes and decisions of Georgia, the doctrine, if otherwise applicable, must be given effect in this case. The Code sections cited by the writer of the majority opinion (Code of 1933, §§ 39-1307, 39-1311) seem controlling. In the absence of “actual fraud or misrepresentation” by the sheriff (§ 39-1307), the purchaser is bound “to see that the officer has competent authority to sell” (§ 39-1311), or, as was said in Solomon v. Peters, 37 Ga. 251 (supra), it devolves upon him to look to “the title of the defendant in execution, and the authority of the officer to sell.” If an attempted judicial sale is void, the ruling in Corley v. Jarrell, 36 Ga. App. 225 (136 S. E. 177), goes only to the effect that the doctrine of caveat emptor can not be applied to coerce payment of the purchase-price, if it remains unpaid. In such a case the law leaves the parties where it finds them. The contention in this case, however, arises, not in an effort to require the purchaser at a void judicial sale to consummate such a nullity by paying over the purchase-money, but in an effort to make the sheriff personally reimburse the purchaser in the amount paid, where the fund has been turned over to the plaintiff in fi. fa., and where, although the sale was void on account of the levy being excessive, there is no contention that the officer was guilty of fraud or misrepresentation. Does the doctrine of caveat emptor apply in a case of this sort ? It being the duty of the purchaser to look for himself in order to see that the officer has “com*488.petent authority to sell” (§ 39-1311), looking not only to the chain of title to the property sold, but, as has been often expressed, the “judgment, the levy, and the deed” (Morris v. Davis, 75 Ga. 169), does such a purchaser have the right, after it has been ascertained that the levy was excessive and the sale as fully executed therefore void, to look thereafter, not to the levy, as was his duty, but to the sheriff personally to reimburse him? Can there be any.sound reason why the doctrine of caveat emptor should not be given application where the defect in his title arises out of the invalidity of a consummated judicial sale at which he became the purchaser, more than it would if some previous sale in the chain of title had been void? The Code (1933), § 39-1307, which deals with the doctrine of caveat emptor, and wherein the levying officer is expressly relieved from personal liability except where he is guilty of actual fraud, does not impose upon the purchaser the duty of looking merely to the title of the defendant in fi. fa., but he must look to the title he is purchasing, and by the Code, § 39-1311, he is expressly bound to see “that the officer has authority to sell.”
Our dissenting brother does not think that a case like this makes the doctrine applicable. He thinks that perhaps the doctrine of estoppel might preclude a recovery where the purchaser is shown to have had equal knowledge with the sheriff as to the defect. Our Code, however, under the title of caveat emptor and in dealing with that subject expressly relieves the officer of personal liability, except where he is guilty of actual fraud or misrepresentation. The purchaser is warned by the law to look for himself at the officer’s competent authority to sell. In the language of the Solomon ease, he is to look both to “the title of the defendant in execution, and the authority of the officer to sell.” Such being the duty imposed, he in law knows as much about the levy as the sheriff does, and in this sense the doctrine of caveat emptor as related to the non-liability of the sheriff might be said to be grounded upon the doctrine of estoppel. See Forbes v. Hall, 102 Ga. 47, 48, 49 (supra). But to get back to the case of Shaw v. Walker, supra, which furnished the occasion of this special concurrence, was that decision correct? In my opinion it was. In view of the statement by Judge Stephens that a present examination of the record in that case discloses that the purchase-price had been paid to the sheriff and by him in turn to the plaintiff in fi. fa., it would not *489seem so, provided the sale in that case could be properly termed a judicial sale. This I do not think it was. In that case the levy was made under a fi. fa. dormant on its face. The sale was more than void; it was not a judicial sale at all, and the doctrine of caveat emptor applies only to judicial sales. As was said in Davis v. Comer, 108 Ga. 117, 119 (supra), a sale under a dormant fi. fa. is just as “if there had been no judgment whatever against the defendant, and no process in existence authorizing the sheriff to seize and sell any of his property.” Surely, if, just because a person happens to be sheriff, he presumes without any sort of authority to levy upon the property of another and proceeds to sell it, such a procedure could not be properly designated a “judicial sale.” In the Shaiu case it was just as if a person who held the office of sheriff had levied on another’s property by virtue of a plain promissory note. The sale not being a judicial sale, the statutes given effect in the instant case, governing the non-liability of the levying officer under the doctrine of caveat emptor, except where guilty of actual fraud or misrepresentation, did not apply, and in my opinion the conclusions arrived at in that ease and in the instant case are both correct.