Frey v. Harry L. Winter Inc. , 166 Ga. 453 ( 1928 )

B.eck, P. J.

On February 5, 1927, Harry L. Winter Inc. filed a petition in Cobb superior court, the substance of which, briefly stated, is, that forty acres of land, being the north half of lot No. 1136 and the south half of lot No. 1097 of the 16th district and second section of Cobb County, Georgia, were omitted from a sheriff’s sale by mistake and error; that the plaintiff, who was plaintiff in fi. fa. and purchaser at the sheriff’s sale, was injured by the mistake and error, and seeks to have the sale set aside and a new sale ordered; that Frey, the defendant in fi. fa., knew of the mistake and error, and is seeking to take advantage of it and is claiming the land as his own. The petition sets out in detail the facts leading up to the sale, and describes at length how and in what way petitioner was injured by the mistake and error. It also appears from the petition that the bid made by the plaintiff’s agent, under the mistaken belief that the land in question was included in the sale, was sufficient to satisfy the fi. fa., and that it was actually marked satisfied and canceled of record. The prayer is, that Frey be enjoined from disposing of the land; that the sale be set aside; that the alleged entries of cancellation of the execution be erased and stricken; that the original judgment be a first lien on the land in question; and that the land be readvertised and sold.

No demurrer or motion to strike was interposed, but the defendant filed an answer in which he denied that the land in question was left out of the advertisement and sale by mistake and error, and contended that the forty acres in question were omitted from the sale purposely on account of having been released by reason of a trade or agreement that defendant claims to have had with plaintiff’s attorneji-s. It was also pleaded that the sale was advertised to take place the first Tuesday in July, 1924, whereas the sheriff’s deed recites that the sale was made on the 2d day of September, 1924; and that no advertisement of such a sale was made as required by law.

Upon the trial the jury returned a verdict in favor of the plaintiff. The defendant made a motion for new trial, which was overruled; and he excepted.

In the first special ground of the motion for a new trial it is contended that the court erred in ruling that the defendant “could not recoup or set off any of the damages or overpayments made to the plaintiff.” The court did not err in this ruling. This was a suit to set aside a sheriff’s sale, on the ground of mistake or error in the sale of the property. Whether the sale should be set aside, under the facts, was the controlling issue in the case. No recovery of money upon a contract or breach, of contract was sought in the plaintiff’s suit; and a consideration of the provisions of our statute in reference to the plea of recoupment, and when it may be filed, and in what eases, shows that it was not appropriate to the present suit. Sections of our Civil Code 4339 to 4353, inclusive, relate to defenses of set-off and recoupment. In section 4339 the defense of set-off is defined as follows: “Set-off is a defense which goes not to the justice of the plaintiff’s demand, but sets up a demand against the plaintiff to counterbalance his in whole or in part.” Section 4350 defines recoupment in the following language: “Recoupment is a right of the defendant to have a deduction from the amount of the plaintiff’s damages, for the reason that the plaintiff has not complied with the cross-obligations or independent covenants arising under the same contract.” And the definition as given in the section last referred to might well be prefaced by the \ first part of the definition of “set-off,” changing the term “set-off” to “recoupment,” so that it would read: “Recoupment is a defense which goes not to the justice of the plaintiff’s demand,” etc. As distinctly appears from the definition of recoupment given in section 4350, it is a right of a defendant “to have a deduction from the amount of plaintiff’s damages, for the reason,” etc. There is no demand for damages or for the recovery of any sum of money for a breach of a contract, nor for money due upon a contract as against which the defendant can be entitled to a reduction from the amount claimed by the plaintiff.

The single question raised by the allegations in the plaintiff’s petition is whether or not there was an error or mistake as there alleged; and the court properly held that this was a question to be submitted to the jury. If the defendant had desired a charge to the jury as to the effect upon the case of marking “settled and satisfied” the fi. fa. under which the land was sold, a proper written request upon that subject should have been presented. That was a fact to be taken into consideration by the jury, and it may be that it was a very material fact; but courts are not compelled to call attention to and specify even material facts, but to charge upon the material issues made by the pleadings, where the evidence authorizes a charge upon that subject. If there was such error or mistake made, without fault on the plaintiff’s part, in the sale of the land, — that is, omitting from the advertisement a tract containing forty acres of land, which from the entry on the fi. fa. appears to be levied upon, and which the plaintiff could presume would be sold with the other land, inasmuch as plaintiff had a special lien upon all the property included in the security deed, from the enforcement of which by proper proceedings the fi. fa. in question resulted, then the error or mistake could be corrected by a court of equity, and it would be only plain equity that it should be corrected. True, there had been a delay of some two years or more, but no statute of limitations had attached, and there are no intervening equities in favor of third parties that have grown up. Under the circumstances alleged, and which the jury were authorized under the evidence to accept and did accept as true, the plaintiff was entitled under the statute to the relief afforded by the verdict and decree. '“Courts have full power over their officers making execution sales; and whenever satisfied that a sale made under process is infected with fraud, irregularity, or error to the injury of either party, the sale wall be set aside.” Civil Code, § 6032.

Judgment affirmed.

All the Justices concur.