Bird v. Burgsteiner

Little, Justice.

The official report shows the fáets.

1. Counsel for plaintiff in error, by his brief filed here, withdrew from our consideration all of the various grounds •contained in the affidavit of illegality, except the 4th, 5th, .and 7th; and our decision will be confined to a review of the •questions raised by those grounds, and whether the court below erred in sustaining a general demurrer thereto. There were eight specific 'grounds set out in the affidavit, in each ■of which it was claimed the execution had issued or was proceeding illegally; and we are not to be understood, in failing to give them notice here, as passing in favor of the ■questions raised; we have simply confined consideration to those only which were not abandoned on the argument here.

The. 4th and 5th grounds of the affidavit, which appear in the statement of the case, raise the question of the time ■necessary, under tKe law, for notice by advertisement of a ¡sale of land by the sheriff, and allege that the sheriff is proceeding to sell under an advertisement of less than four weeks. To determine this question, it will not be necessary to refer specifically to legislation on the subject prior to the act of 1891. Formerly thirty days advertisement was required; and later advertisements of such sales made once- a. week for four weeks met the requirements of the statute. But by an act approved October 21st, 1891 (Acts 1890-91, p. 241), which is a very general and comprehensive enactment on the subject, previous laws were changed. It is provided in this act that “it shall be sufficient and legal to publish the same once a week for four weeks (that is, one insertion each week for each of the four ’weeks) immediately preceding the term or day when the order is to be granted or the sale is to .take place; and the number of days between the date of the first publication and the term or day when the order is to be granted or the sale to take place, whether more or less than thirty days, shall not in any manner invalidate or render irregular the said notice, citation, advertisement, order or sale.” It is seldom that more emphatic language is found in a legislative enactment, and it is rarely the case that one -act seeks, by the- multitude of terms used, to prevent any misconception, of the legislative will. In the case of Boyd v. McFarlin, 58 Ga. 208, this court, in construing section 3647 of the Code of 1873 (Oivil Code, §5457), which required notice of sheriff’s sales of land to be published weekly for four weeks, held, that the- statute was not met by publication for a shorter period of time than 'twenty-eight days; in other words, that when the statute fixed the period at once -a week for four weeks, it meant to use the 'term “week” as a period of time consisting of seven days, and 'that when there should be a publication weekly for four weeks, it meant once in each seven days, so as to give notice of such sales for twenty-eight days before the sale should take place. This was the law, as construed, at the time the act of 1891 was passed, and that act was-'intended to change existing law, so that if a notice of such sale should be made once a week for four weeks, such advertisement would be sufficient, -without reference to the- number of days which might so elapse. In ascertaining the legislative intent as expressed by the act, we are bound to conclude also that the-week of seven days was not intended to be taken as the period in which one publication only of the notice must necessarily be made, because such was the statute as interpreted by the court at the time of the passage of the act; hence the act, in referring to the publication to be made once a week for four weeks, means a calendar week, and if" notice shall be made on any day. of a calendar week, that shall be counted as a publication for that week; and this-construction would allow a notice to be made on a day within, the week when the sale is to- take place> because the act expressly excludes computation of days.

Such is our construction of the act of 1891. It is neither our province nor purpose- to criticise the policy of this legislation. "Were we. to do so, I should be disposed to doubt' the wisdom of sanctioning a sale of lands taken under execution on so short a notice. At best, comparatively few persons are reached by the published notices appearing once in a week. The object of the advertisement is to secure as-many bidders for the property as possible; and any legislation which tends to restrict knowledge of the fact, time and place of sale, might, not without reason, be regarded as-working injustice, not only to the creditor, but the debtor as-well.

In this case, the advertisement of the sale of the land by the sheriff was made first on January 10th, the second notice-would appear on January 17th, the third on January 24th, and the fourth on January 31st, while the sale would take place on the 4th day of February — just 26 days after the advertisement first appeared. Nevertheless, as, under the act of 1891, the days which elapse between the two periods are not to be computed, and the advertisement would appear-once in each of the four calendar weeks, we are constrained ■to hold that such advertisement meets the requirements off that act.

2. The law (Civil Code, §5421) declares that the levy “shall plainly describe the property levied on and the amount of the interest of the defendant therein.” In one of the early cases before thus court, Whatley v. Newsom, 10 Ga. 74, where title in an 'action of 'ejectment rested on .the sufficiency of the description of the property contained in .a sheriff’s deed (which must follow the. levy), Judge Lump-kin, holding 'the deed void for uncertainty of description, declares the rule to be that “the thing sold must in all cases be specified with so much precision as from the description it can be reduced to certainty”; and quotes approvingly from an opinion of Chancellor Kent: “Ko person attending a ¡sheriff’s sale can know what price to bid or how to regulate his judgment, if there be no specific or certain designation of the property. To tolerate such judicial sales would be a mockery of justice; the sheriff cannot sell any land on execution but such as the creditor can enable him to describe with reasonable certainty so that the people whom the law invites to such auctions may be able to know where and what is the property they are about to purchase.” Hollowing this rule, this court, in Rutherford v. Crawford, 53 Ga. 138, held that a levy on land consists in the entry, and the sheriff after the sale is to put the purchaser in possession, .and “it is therefore of prime importance that this entry shall be complete.” It should describe the property with sufficient distinctness to enable the purchaser to know what he is buying and to enable the officer to put the buyer in possession. See also Brinson v. Lassiter, 81 Ga. 42. It has also been held that a sale and conveyance of land under a levy on an undefined interest, is void for uncertainty. Williams v. Baynes, 84 Ga. 116.

The levy in the case under consideration is made on a specified lot of land as the property of the defendant. The levy recites that it contains one acre and is an undivided half-interest in two acres. It will be noted that it is not an undivided half-interest in the lot which is levied on, but the whole lot containing one .acre is levied on as an undivided half-interest in two acres. Tested by the rules laid down, we are unable to say that the levy attaches to an undivided half-interest in two acres, because such an interest would extend to every part of the whole which is not levied on; nor' can we say that the levy attaches to a particular lot, because while a lot containing one acre is specified, that particular part of the whole is described as an undivided half-interest in two acres. The levy is very uncertain. A purchaser could not tell whalt he was buying, and the sheriff would find some-difficulty at least to determine, under tire description given, what particular land, as well as the interest in it, he should put into the possession of a purchaser under a sale. Any conveyance made by the sheriff, containing the description set out in the levy, would be void for uncertainty and pass-no title. This defect in the description of the land appearing in the levy can, when the sale -is advertised, be taken advantage of by affidavit of illegality, 58 Ga. supra. The court therefore erred in sustaining a demurrer to this ground of the affidavit of illegality.

Ju-dgment reversed.

All the Justices concurring.