Brady v. Smotherman

Stephens, J.,

dissenting. Notwithstanding the doctrine of caveat emptor applies to a purchaser at a sheriff’s sale (Code of 1933, § 39-1307), it does not apply where the sale is void and the purchaser, by reason of the invalidity of the sale, upon the ground of a void levy, or otherwise, acquires no title. In Corley v. Jarrell, 36 Ga. App. 225 (136 S. E. 177), it was held that where a sheriff’s sale was void by reason of an invalid levy, the purchaser was not liable upon his bid. The court there expressly stated that “the levy and sale being void, the doctrine of caveat emptor is inapplicable.” See also 23 0. J. 655, § 623. Under the doctrine of caveat emptor the buyer is bound to take notice of the amount and nature of the interest which he is about to buy and can not hold the seller to a warranty of title or quality. See Broom’s Legal Maxims (9th ed.), 501; Borer on Judicial and Execution Sales (2d ed.), 77; 11 C. J. 43, 44. Where there is no sale, there can be no application of the doctrine of caveat emptor. As I see it, there is nothing contrary to this in any of the authorities cited in either of the opinions of my colleagues, including Code of 1933, §§ 39-1307, 39-1311, Wheaton v. Sexton, 4 Wheat. (U. S.) 503 (4 L. ed. 626), *490Brooks v. Rooney, 11 Ga. 423, and Solomon v. Peters, 37 Ga. 251. A purchaser at an execution sale, in order to obtain whatever title the defendant in fi. fa. has, “depends upon the judgment, the levy, and the deed.” These are the essentials of a valid sale divesting the title of the defendant in fi. fa. Where any one of these essentials is lacking; the purchaser obtains nothing. If he pays his money over, he buys nothing. He does not, by the application of the doctrine of caveat emptor, stand to lose the money which he has thus paid. It is only where the sale is valid and the purchaser has obtained whatever title the defendant in fi. fa. has that the purchaser, upon an application of the doctrine of caveat emptor, can be held to his bargain. In Methvin v. Bexley, 18 Ga. 551, where it was held that a purchaser at an execution sale, after the title of the defendant in fi. fa. had failed and the purchaser had been forced to give up possession, could not recover of the sheriff the purchase-money which had been paid, there was presented no question as to the invalidity of the sale. That decision stands for the doctrine that where an execution sale is valid, the purchaser obtains whatever title the defendant in fi. fa. had, and, upon an application of the doctrine of caveat emptor, is bound to his contract and can not recover the purchase-money which he paid to the sheriff. In that case, which was a suit by the purchaser against the sheriff, to recover the money, it was expressly stated in the opinion of the court that the petition contained “no allegation going to show the perpetration of any fraud on the purchaser, or going to show the invalidity of the judgments on which the fi. fas. were founded,” but that “the only thing it complains of is that the defendant in the fi. fas. had no title to the property sold under the fi. fas. and purchased by the complainant.”

Freeman, in his work on Void Execution, Judicial, and Probate Sales (3d ed.), in sections 48 and 49, has this to say: “The distinction between void sales and defective titles must be kept in view, to avoid any misapprehension of the rights of one who has purchased at an execution or judicial sale, without, in fact, obtaining anything. If he obtains nothing because of a defect in the proceedings, he can defeat an action for the amount of his bid. If, on,the other hand, the proceedings are perfect, but the defendant, or ward, or decedent, had no title to be sold nor conveyed, the purchaser is nevertheless bound by his bid, if he has permitted an *491order of confirmation to be entered against him, without objection; or if, notwithstanding his objections, such order has been entered and remains in force. In some of the States caveat emptor is the rule of all execution and judicial sales. Each bid is made for such title as the defendant, ward, or decedent may have, and is therefore binding, whether either had title or not. . . Whoever pays out money on account of a purchase made at a void sale parts with a valuable consideration, for which he acquires nothing. . . If the title fails through defects in the proceedings, arising from the neglect or misconduct of the sheriff, the purchaser can sustain an action on the case against that officer.” In support of the last proposition he cites the case of Sexton v. Nevers, 20 Pick. (Mass.) 451 (32 Am. D. 225), wherein it was held that where an officer neglects to properly levy upon, advertise, or sell property on execution, whereby the purchaser loses title, he is liable to such purchaser.

Section 39-1307 of the Code of 1933 is but an application of the doctrine of caveat emptor to execution sales such as sales by a sheriff. It does not extend the application of the doctrine to void sales made under judicial process, but simply applies the doctrine to the sales referred to and places the burden upon the purchaser to look for himself as to the title and the soundness of the property. It does make the levying officer liable for actual fraud. This might be the case where the levy is void. In any event this section does not expressly limit the levying officer’s liability.

The provision contained in section 39-1311 of the Code of 1933 that “an innocent purchaser [at a judicial sale] is bound only to see that the officer has competent.authority to sell, and that he is apparently proceeding to sell under the prescribed forms,” means, as I construe it, that all that is essential to pass title to an innocent purchaser is that the officer has competent authority to sell and is apparently proceeding to sell under the prescribed forms. Where these conditions appear, the innocent purchaser obtains whatever title may be existent in the defendant in execution. This provision does not mean that a purchaser who acquired no title because of a lack of authority in the levying officer to sell the property and the sale was therefore void, and who had for this reason lost the property after he had paid the purchase-money therefor to the levying officer, is, upon an application of the doctrine of caveat emptor, bound for the purchase-money and that after having paid the money *492to the sheriff the purchaser is precluded from recovering it from him, notwithstanding the sheriff may have paid the money over to the plaintiff in fi. fa. See Wallace v. Trustees, 52 Ga. 164; Forbes v. Hall, 102 Ga. 47 (28 S. E. 915). Any disability resting upon the purchaser to recover of the levying officer must be predicated upon some other legal principle than that of caveat emptor. I do not understand that this provision of the code section as a matter of law charges the purchaser at a judicial or execution sale with notice of the invalidity of the sale by reason of a void levy or otherwise, and that he would therefore by reason of such notice be estopped as a matter of law from recovering from the levying ofiicer. The purchaser might be estopped from recovering from the levying officer where the purchaser had knowledge of the invalidity of the sale or had equal means with the levying officer of knowing of such invalidity and therefore made a voluntary payment with knowledge of the facts. See State v. Prime, 54 Ind. 450, and Schwinger v. Hickok, 53 N. Y. 280.

There is a distinction between a judicial sale and a sale under execution. A judicial sale is one made by the court and under its authority, while an execution sale, such as a sale by a sheriff, is one made by an officer under process and in accordance with the requirements of law. In many cases a distinction is made between the application of the doctrine of caveat emptor to judicial sales and to sales under execution. It is not always applied to judicial sales. See 35 C. J. 75, 76; 23 C. J. 615; Rorer on Judicial and Execution Sales (2d ed.), 69, 70; Freeman on Yoid Execution, Judicial and Probate Sales (3d ed.), § 49.

In Shaw v. Walker, 25 Ga. App. 632 (2) (104 S. E. 23), it was held that where a sheriff’s sale was made upon a levy of a dormant fi. fa., the sale was a nullity and the purchaser acquired no title to the property sold and could therefore recover from the sheriff the purchase-money which had been paid him. It did not appear there that the sheriff had not paid the money to the plaintiff in fi. fa., but the record indicates that the money had been so paid. This case seems to be controlling. In Hightower v. Handlin, 27 Ark. 20, it was held that “where the judgment of a court, or an execution issued thereon, is declared void, by competent authority, the purchaser, under such sale, takes nothing, but would have recourse upon the sheriff, who made the sale, for the money paid at it.” Tt *493does not appear there that the sheriff had not paid the money to the plaintiff in fi. fa., but the record there indicates that the money had been paid to the plaintiff in fi. fa. See 57 C. J. 858; McGhee v. Ellis, 14 Am. D. 124 (4 Litt. (Ky.) 244).

An excessive levy is absolutely void, and a sale thereunder passes no title to the property sold. Such sale is not merely voidable, but is void. Its invalidity can be established collaterally. Roser v. Georgia Loan & Trust Co., 118 Ga. 181 (44 S. E. 994); McKenzie v. Pound, 121 Ga. 708 (49 S. E. 689).

I therefore can not concur in the judgment of reversal where it is based upon the ground that, upon the application of the doctrine of caveat emptcrr, a purchaser at a void sheriff’s sale, where he has lost the property by reason of the invalidity of the sale, can not recover of the sheriff the amount of the purchase-money paid, notwithstanding the sheriff may have paid the money over to the plaintiff in fi. fa.