Corley v. Jarrell , 36 Ga. App. 225 ( 1926 )

Bell, J.

Henry Dozier, owner of a parcel of land in the city of Manchester, conveyed the same to a bank to secure a loan of money. He was, or became, indebted also to I. H. Davis who bought the bank's debt and obtained judgments on both claims. The land was levied on and sold in October, 1919, to satisfy executions issued on both judgments. J. P. Corley, who was the successful bidder for the property at $250, subsequently refused to pay for it. The sheriff notified Corley that he would resell the property at his risk, and did resell to one Williams for $150. The present action by the sheriff, for the use, was to recover of Corley the difference between his bid and that at which the property was resold. Corley, in an amendment, which the court allowed, to his answer, alleged that no reconveyance of the property had ever been made to the defendant in fi. fa., but that the title remained in the bank under the security deed, and that because of this fact the levy and sale were void and the defendant was not liable. The court sustained a demurrer to this amendment, and struck it, for insufficiency in law. The trial having resulted in a verdict and judgment in favor of the plaintiff, the defendant brought the case to this court, complaining of the order striking his amendment to the answer and of the judgment overruling his motion for a new trial.

A security deed conveys the absolute title, and leaves the grantor no interest in the land which can be subjected to levy and sale by a creditor. “Even if it was ever the law of this State that a partial payment of the debt would give the grantor in the security deed a leviable interest in the land, or that, even where no part of the debt has been paid, a purchaser at a sheriff sale would acquire the debtor’s right to redeem by paying the money to the lender, such has not been the law since the passage of the Act of 1894 [Sections G037 and 6038].” Shumate v. McLendon, 120 Ga. 396 (8) (48 S. E. 10); Burkhalter v. Durden, 122 Ga. 427 (50 S. E. 144); Buchan v. Williamson, 131 Ga. 501 (62 S. E. 815); Parker v. Home Loan Asso., 114 Ga. 702 (1) (40 S. E. 724); Bank of LaGrange v. Rutland, 27 Ga. App. 442 (3) (108 S. E. 821). “Where the vendor of land who retained the title obtained against the vendee a judgment for a balance of the purchase money, and had the land levied on and sold under an execution issued upon such judgment, without first filing and having recorded a deed conveying the land to the vendee, the sale was void and one who bid off the laird could not be compelled to pay the amount of his bid and accept the sheriff’s deed to the property.” McCord v. McGinty, 99 Ga. 307 (1) (25 S. E. 667). See also Hogg v. Truitt Co., 150 Ga. 139 (1) (102 S. E. 826). The. levy and sale being void, the doctrine of caveat emptor (see Pinkston v. Harrell, 106 Ga. 102, 31 S. E. 808, 71 Am. St. Rep. 242) is inapplicable. In 23 C. J. 655, § 623, it is said that “while the rule of caveat emptor generally applies to sheriff’s sales, yet in order to hold the purchaser liable for his bid, such title as the execution defendant actually had must have passed by the sale; and if the sale from any cause is inoperative to transfer the debtor’s interest such as it may be, the purchaser can not be held liable for the amount of his’ bid.” The instant case is to be differentiated from such cases as McDonald v. Ellis, 17 Ga. App. 471 (87 S. E. 711), and Hogg v. Truitt Co., supra, in each of which the defendant, because of facts not here present, was estopped from asserting the invalidity of the levy and sale.

The court erred in sustaining the demurrer to the defendant’s amendment. This ruling appears, under the record, to be controlling. We have therefore not deemed it necessary to state or decide other questions made.

Judgment reversed.

Jenkins, P. J., and Stephens, J., concur.