Kilgo v. Castleberry , 38 Ga. 512 ( 1868 )

McCay, J.

1. The entry on an attachment of the levy upon land, does not create a lien, as against a judgment obtained before judgment on the attachment. There was, therefore, no reason why the common law judgment should not sell the property. Our attachments are only quasi proceedings in rem, so that the land can in no proper sense have been locked up by the first levy. In practice, there is fact no seizure of land by a levy in this State. Nothing is done but the entry and notice to the tenant.

2. Why might not R. J. Castleberry buy at the sale? Public policy would rather promote than forbid, bidding, and Mr. -Castleberry was interested in having the land bring at least enough to pay the fi. fa. That he was one of the co-defendants, does not, to our minds, affect his right to bid. So far as the validity of the sale is concerned, we do not see but that the defendant, as whose property the land was sold, might have bid, and if the highest bidder, have been the purchaser. There is no charge that the sale was not duly advertised. Why was not Kilgo present, and himself a bidder ?

3. It is true there is a charge in the bill, of fraud, but it is a mere general charge, and states no facts. Equity will not interfere, without some specific allegation of facts, which the Court may pronounce fraud.

4. If the sale was illegal, complainant has a remedy at law. In every view of it we think the Judge was right.

If it be true that this fi. fa. selling the land was a joint debt, both defendants equally interested in the consideration, or if R. J. Castleberry was the principal, we will not say that the complainant may not have his remedy by garnishment. In that case, Benjamin F. Castleberry’s land having paid the whole debt, R. J. Castleberry would have been .indebted to Benjamin so much for money paid to bis use.

Judgment affirmed.