Smith & Lennard v. Lard , 28 Ga. 585 ( 1859 )

By the Court.

Benning, J.,

delivering the opinion.

Did the court err in refusing to grant the injunction ? We think not; we think that there was no equity in the bill.

It may be assumed that there was no equity in the bill, unless it was true, as alleged by the bill, that the sale of the land by the sheriff, to Gunn, was void. If that salé was good, the. land ceased to be Lard’s, and became Gunn’s, and therefore it is not now subject to the fi. fa.

Was that sale void? The complainants insist that it was, and the reason they give for so insisting is thus stated by them: “ because orators charge that the levy designates said property as that of said defendants, all of them, while the advertisement under which Gunn purchased, describes it as the property of Lard alone.”

But first, we do not find that this reason is true, in point of fact. The bill gives but one levy, and it gives that thus : “your orator further sheweth, that on the first day of October, 1856, Early Yarner, as deputy sheriff of said county, levied said fi. fa. upon certain property, as that of Lodwick E. Lard, to-wit: one-third interest of steam mill and fixtures,” &c., “all in the 6th district of said county, and levied on as the property of defendant,” &e., not as the property of defendants. It is not true, in fact, then, that this “levy designates said property as that of said defendants, all of them.” This levy designates it as the property of Lard only.

The reason being, in point of fact, not true, there can be no valid conclusion from the reason. Consequently, the conclusion stated in the bill, that the sale to Gunn was void, cannot be a valid one.

But what is the true conclusion from the real facts, the facts as they are stated in the bill ? It is the opposite to that drawn in the bill — it is that the sale to Gunn was valid — for the facts as stated by the bill are that the property was levied on as Lard’s, was advertised as Lard’s, was sold as Lard’s, and was bought by Gunn as Lard’s. Consequently, it must be true, that the sale to Gunn was valid, if regularity in these respects could make the sale valid.

This would be enough to show that there is no equity in the bill as it stands, but we are by no means prepared to say that the sale was void, even if it were true, that the property was levied on as the property of all the four defendants, and was advertised and sold as the property of only one of them, Lard. The greater includes the less, the levied property, therefore, included the advertised and sold property. If the levy gave the right to sell the whole of what was levied on, why did it not give the right to sell a part? Who would be hurt by a sale of a part? The other part would still remain subject tobe sold. Gunn might still sell the interest of the three other defendants than Lard; and, ont of that interest, make the balance of his money. It may be true, that Guun would not be bound to do this, that he would be at liberty to make that balance out of other property of Lard’s, or of Lard’s vendees, if subject to his fi. fa. to make it, say, out of this property sold by Lard to the complainants; yet if he did so, he would do only what a plaintiff in fi. fa. has the legal right to do; he would do only what he might have done at first, for he might at first have instructed the- sheriff to levy the money out of Lard exclusively; he would do no lasting harm to Lard, or his vendees, the complainants, for if, in this way, he should make an over proportion of his money, out of Lard’s property, or out of that of Lard’s vendees, Lard or Lard’s vendees would be entitled to contribution from the other three defendants, and thus, in the end, Lard or his vendees would lose nothing.

But, as before said, it is sufficient that it does not appear to be true, that the property was levied on. as the property of the “defendants, all four.”

Judgment affirmed.