LaRoche v. Liberty Bank & Trust Co. , 151 Ga. 442 ( 1921 )

Gilbert, J.

1. The court did not err in overruling the general demurrer to the petition. Upon the controlling legal issues involved the questions made are ruled by the decision in LaRoche v. Kinchlo, 150 Ga. 296 (103 S. E. 713).

2. The charge of the court, considered in its entirety, fairly and correctly submitted the issues to the jury, and is not subject to the criticisms made in the motion for a new trial. The assignments of error on the admission of evidence do not show cause for a reversal. The verdict is supported by evidence.

Judgment on main till of exceptions affirmed. Gross-hill of exceptions dismissed.

All the Justices concur.

1. That the petition undertook to set up two separate and distinct causes of action, one upon illegal levy, fhe other upon tender for redemption of property sold for taxes; the petition not being in separate counts, and the allegations not being arranged as required by law when separate causes are set up in one petition. On this counsel cited Cooper v. Fortner Co., 112 Ga. 894 (3), 899.

2. That the verdict was contrary to law and to the evidence. On this counsel argued: (1) That there was no lawful tender before suit; the testimony being to the effect that neither the defendant’s wife nor the attorneys who represented him in the previous suit had any authority in regard to the matter of tender, either of acceptance or of refusal, and the attorneys were not authorized to collect any money. (2) That the sum tendered was not sufficient, as it did not include the amount ($156.20) of the execution for taxes of 1918, which amount was never tendered to any one, nor had it been paid into the registry of court. Counsel cited: Civil Code, §§ 114-5, 1146, 1169, 1172, 4322; Glower v. Fleming, 81 Ga. 246; 37 Cyc. 1410; 38 Cjc. 156, 157; Tuthill v. Morris, 81 N. Y. 94; Stratton v. Graham, 164 App. Div. 348 (149 N. Y. Supp. 662); McGuire v. Bradley, 118 111. App. 59.

3. That the court erred in giving the following instructions in the charge to the jury, each of which was excepted to: “ If you find from the evidence that the value of the property was very greatly larger than the amount of the valid execution levied on it, you would be authorized to find the levy and sale to be void. An execution against the estate of a person is void, and a sale under the same would be void. If you find that the executions for the years 1910 to 1916 were against the estate of Stiles, they would be void, and a levy and sale under them would be void. The execution for the year 1917, being against Hamilton Hardee as administrator of the estate of W. H. Stiles, was valid; but if you find that the levy was excessive, you would be authorized to find that the levy was void and the sale thereunder void.” The errors assigned were: (a) That the instructions, were contrary to law. (5) That the court made the validity of the sale depend on whether certain of the executions were void; defendant contending that if one of them was valid, the fact that invalid ones were simultaneously levied would not render the sale void, (c) That the charge tended to confuse and mislead the jury, (d) That the court did not charge, that, even in case of a sale void for excessive levy, a legal tender must have been made before suit could lawfully be brought. (In other parts of the charge instructions on the subject of tender were given.) Counsel cited: Montford v. Allen, 111 Ga. 18 (3), 23, and cit.; Powell on Actions for Land, § 229;,Miller v. Broolcs, 120 Ga. 232, 234; Glower v. Fleming, 81 Ga. 247; Moms v. Davis, 75 Ga. 169, and cit.; Wil!banlcs v. Untriner, 98 Ga. 801; Williamson v. White, 101 Ga. 276, and cit.; Boser v. Ga. Loan &c. Go., 118 Ga. 181, and cit.; StarTc v. Cummings, 119 Gw. 35, s. c. 127 Ga. 107, and cit.

4. That it was error to admit the testimony showing tender to ihe defendant’s wife and to his attorneys, over the objection that it was irrelevant, because there was no proof of authority to accept or to reject the tender, and because the amount was not sufficient.

Travis & Travis, for LaBoche. George W. Owens, contra.