Clark v. Holton , 94 Ga. 542 ( 1894 )

On July 7, 1891, J. J. Clark sued Nathaniel Holton for land lot 30 in the second district of Appling county. The plaintiff offered in evidence a wild land tax fi. fa. and a sheriff’s deed, which were rejected by the court; to which ruling, and to the grant of a nonsuit, the plaintiff excepted. The fi. fa. appears to have been issued by W. L. Goldsmith, comptroller-general, October 1, 1877, is directed to all and singular the sheriffs of said State, and commands them to lévy upon and sell according to law lot of wild land number 30, district 2, county of Appling, so as to make $6.42, the same being State and county tax on said lot of land for the years 1874-5 and-76, with lawful costs, etc. Indorsed on the fi. fa. was an entry of levy on said lot, April 1, 1878, by the sheriff’ of Appling county; and the following entries: “Name of purchaser,settled by J. J. Clark. Date of sale, May 7th, 1878. County of sale, Appling. Sheriff’s costs, $4. Advertising, $4.” The deed was signed by the sheriff’ who signed the entry of levy. It bore an entry of record dated May 31,1879. The date of it is recited as “the day of in the year of our Lord 1878.” It recites that the sheriff' “did on the day of 1878, levy upon the land” mentioned in the fi. fa., “and on the first Tuesday in 1878, expose the same to public sale in Baxley in said county, before the court-house door between the legal hours of sale, after advertising the same for the term of once a week for four weeks, . . . did sell the said property on the day of 1878, the same being levied on and sold as unreturned wild land under and by virtue of an execution issued by W. L. Goldsmith, comptroller-general of said State, for State and county tax due thereon,” to J. J. Clark, the highest bidder, for $17.50; the lot containing 490 acres, and certain stated fractional parts of it having first been offered, etc.

Graham & Parker, for plaintiff. G. J. Holton & Son, for defendant.

On objection that the deed did not follow the fi. fa., in that it did not recite the day or month of levy or sale, plaintiff’ offered to prove by parol' that the land was sold under said fi. fa. by said sheriff on the first Tuesday in May, 1878, before the court-house door of said county during the legal hours of sale, to J. J. Clark as the highest and best bidder; and that the entries on the back of thejü. fa., stating the name of the purchaser and the date and county of sale, were in the handwriting of said sheriff, and were by him made on May 7th, 1878. The testimony was rejected.