Tucker v. Wimpey , 1923 Ga. LEXIS 20 ( 1923 )

Hill, J.

Under the ruling made in Patterson v. Lemon, 50 Ga. 231, a decision rendered in October, 1872, referring to a sale which occurred on the first Tuesday in October, 1867, which decision was followed ' in the case of King v. Cabaniss, 81 Ga. 661 (7 S. E. 620), and which was by a full bench of three Justices, and was older than the eases of Power v. Shingler, 137 Ga. 157 (72 S. E. 1094), and Hawks v. Smith, 141 Ga. 422 (81 S. E. 200), and therefore controlling, the deed rejected was legal, and the trial judge erred in refusing to admit it in evidence, and in granting a nonsuit. There was no intimation in the cases of Poicer v. Shingler, and Hawks v. Smith, supra, that there was a formal request to review and overrule the decisions in the 50 Ga. and 81 Ga., supra; and those older decisions, not having been reviewed and overruled, are controlling, and the later cases will not be followed.

Judgment reversed.

All the Justices concur except Bech, P. J., dissenting. M. Kunz and Hall, Grice & Bloch, for plaintiffs. Duncan & Nunn and Byals & Anderson, for defendants.