Bell v. Chandler , 23 Ga. 356 ( 1857 )

By the Court. —

Benning, J.

delivering the opinion.

The only foundation laid for the introduction of secondary evidence of the was the notice to produce the fi.fa.

What the answer to that notice was, does not appear. The paper called for, ivas a fi fa. It was a paper, therefore, which, it is to be presumed, was not in the possession of the party notified to produce it; but where it belonged, in the Clerk’s office. It is not to be presumed, therefore, that the answer admitted the fi.fa. to be in the possession of the answering party.

[1.] This being so, we think that the foundation for secondary evidence was not sufficient; and therefore, that the Court erred in admitting, as evidence, the copy of the fi.fa.

[2 ] A purchaser at Sherifi’s sale acquires no title, if the Sheriff has no authority to sell. ’ And this is true, whether he has notice of the want of authority or not. A Sheriff .who sells under fi.fa., has no authority to sell, if the fi.fa. stands on no judgment, or if it stands on a satisfied judgment.

It follows, that the charge of the Court was wrong.

The counsel for the defendant in error, Mr. Buchanan, did not defend this charge, but he insisted, that the evidence was such, that it required the verdict to be as it was, no matter what might have been the charge.

But we do not think so.

We do not think, that the possession proved in Chandler, was sufficient. Royall vs. Lessee of Lisle, 15. Ga. Rep. 545.

Then, Chandler, before he took any deed, had notice of Bell’s title.

He went into possession in bad faith; that is, of set purpose to acquire a title under the statute of limitations, in fraud of Bell’s title.

Besides, none of the evidence would have been before the jury, if the Court had excluded the fi.fa., and we have determined that the Court should have excluded the ft. fa.

Judgment reversed.