Shurley v. Black , 156 Ga. 683 ( 1923 )

Hines, J.

1. The tender, on the day of sale and prior to the sale, to the sheriff, or to the attorney of the plaintiff in execution, of the full amount due on such process, upon condition that the sheriff or attorney transfer the execution to a third person who was furnishing the money, did not operate as a payment and discharge of the execution; and such conditional tender did not render the sale by the sheriff of property, levied upon under the execution after such tender, void. Aliter, if the tender had been unconditional and in satisfaction of the process.

(a) The evidence, fairly considered, shows an unconditional tender hv the defendant in fi. fa. to the attorney of the plaintiff in fi. fa. before the sale, the attorney testifying that the defendant in fi. fa. made to' him a tender of the full amount due on the fi. fa. in payment thereof before the sale, and not testifying that the tender was accompanied with any conditions; it being the manifest purpose of the plaintiff in fi. fa. amd his attorney to reject any tender of the full amount of the fi. fa. unless the defendant paid a tax fi. fa. and another fi. fa., both of which had been levied and placed in the sheriff’s hands to claim the funds, the latter fi. fa. having issued on a judgment for a debt secured by a deed to the property levied upon, which the plaintiff in fi. fa. had to redeem before he could levy upon this property. For this reason we are- of the opinion that the court erred in not temporarily restraining the defendants from interfering with the possession of the plaintiff in this case.

No. 3769. October 13, 1923.

(6) Without express authority a sheriff can not transfer a fi. fa. in his hands for collection. Hardwick v. bash, 140 Ga. 608 (79 S. 13. 532).

(o) While an attorney of record may transfer an execution subject', to the ratification of the plaintiff therein (Civil Code (1910), § 5970; Southern Star Lightning Rod Co. v. Duvall, 64 Ga. 262), such attorney is not required to make such transfer upon tender of the amount due on the process by a third person, or upon the tender of such amount by the defendant in fi. fa., with a request that the attorney transfer the same to another who advanced to the defendant the money with which such tender was made. .

2. injunction will not be granted to restrain the sheriff from executing a deed to the purchaser of property, levied upon and sold by that officer, after such deed has been actually executed and delivered to the purchaser; and the court did not err in refusing to enjoin the sheriff from executing a deed to the purchaser.

(a) Injunction will not be granted to restrain acts already completed. Civil Code (1910), § 5499; Simmons v. Lindsay, 144 Ga. 845 (88 S. E. 199).

, 3. We reverse the judgment of the court below on the ground that the trial judge should have temporarily restrained the defendants from interfering with the possession of the plaintiff until the question whether she had made an unconditional tender of the full amount due on the fi. fa. before the sale has been determined, the making of such tender rendering the sale illegal and void.

Judgment reversed.

All the Justices concur. Homer Beeland, for plaintiff. K. P. Lowe and LeSueur & LeSueur for defendants.