Brown v. Warren , 57 Ga. 214 ( 1876 )

Warner, Chief Justice.

This was a claim case, on the trial of which, the jury, under the charge of the court, found a verdict in favor of the claimants. A motion was made for a new trial on the various grounds therein stated, which was overruled by the court, and the plaintiff in fi. fa. excepted.

It appears from the evidence in the record, that the plaintiff’s fi. fa., which was levied on the property in controversy issued on a judgment obtained against John G. White in February, 1868. It further appears from the evidence that an execution issuing from a judgment obtained in the fifth circuit court of the United States, on the 12th of November, 1870, in favor of Lathrop & Company, assignees, against George H. White, was levied on the property in dispute by the United States marshal, on the 2d of October, 1871, and sold by him as the property of said George H. White, on the 2d of January, 1872, and purchased by Lathrop & Company for the sum of $4,848 69, which amount they receipted for to the United States marshal on the 17th of January, 1872. It also appears from the evidence that when the property levied on by the marshal as aforesaid, was offered for sale by him, that is to say, when he had proceeded to sell a small portion of the property, the sheriff of Houston county would immediately levy on the same as the property of John G. White to satisfy the ft. fa. in favor of Brown against him. At this stage of the proceedings, Warren, one of the firm of Lathrop & Company, after stating that the sheriff’s levies were illegal, and that he would hold him responsible, entered into an agreement with the plaintiff, Brown, and the sheriff, that he would become the purchaser of the property for Lathrop & Company; that he would consider the whole of the property as levied on and let it stay there until to-morrow, and after that they could take possession of the property as it was bid off Witness waived no rights — waived nothing. The entry of the levy was made on the ft. fa. of Brown, the plaintiff, on the property in the hands of the purchasers at the marshal’s sale, by the sheriff, on the 3d of January, 1872, the next day after the sale in pursuance of the agreement, as the property of John G. White, and Lathrop & Company claimed it. From the evidence in the record, George H. White was in possession of the property at the time of the levy of theft, fa. by the United States marshal, and he had obtained the money with which most of it was purchased from Lathrop & Company, the plaintiffs in the ft. fa. under which it was sold.

1. Was the levy made by the sheriff of the plaintiff’s ft. fa. upon the property in controversy, in the manner and under the circumstances hereinbefore recited, a good and valid levy, in contemplation of the law ? In any view that may be taken of the entire transaction, it was an unauthorized and illegal interference with, and obstruction of, the marshal’s sale of the property which was in his legal custody, and was being sold by him under the legal process of the court under which he was acting : Crocker on Sheriffs, sections 472, 449.

If a sheriff, under the direction of the plaintiff in ji. fa., can be allowed to attend a marshal’s sale and levy upon the property sold as soon as it is purchased by a bidder, property would not bring much at marshal’s sales, and the same result would follow if marshals were allowed by the law to do the same thing at sheriff’s sales; but the law does not allow such things to be done, for the simple reason that it obstructs the due execution of the law by obstructing the legal process of the courts. But it is said that Lathrop & Company agreed that the property should be considered as levied on, and that the entry of the levy on the property by the sheriff was made in pursuance of that agreement. Concede that to be true, and how does it affect the claimants ? The only consideration' for that agreement was the illegal conduct of the'plaintiff in ji. fa. and the sheriff; or, in other words, it was the illegal conduct of the plaintiff and sheriff that caused the agreement to have been made, and the claimants waived none of their legal rights when they made it, and the plaintiff in ji. fa cannot complain if they insist upon them in the courts, as they said they would do when they made the agreement.

2. Independently of the illegal levy made on the property in the manner and under the circumstances under which it was made, the evidence in the record is such as to have required the verdict rendered by the jury, notwithstanding the alleged errors in the rulings of the court. Lathrop & Company furnished the money to George H. White with which nearly all the property levied on was purchased or made, and there is certainly no injustice in appropriating the proceeds of the sale of that property to the payment of their judgment debt.

Let the judgment of the court below be affirmed.