Opinion
13496.
OCTOBER 15, 1940.
Ejectment. Before Judge Candler. Stephens superior court. May 16, 1940.
Ben F. Cheek Jr., for plaintiff.
George L. Carter Goode, for defendants.
1. Proof of the value of land and of the age of a life-tenant is not sufficient evidence on which to fix the value of the life-estate therein. Where a general tax execution against a life-tenant is levied upon land in which the tenant has a life-estate, the life-estate only, and not the fee, is the property under the levy; and where the levy is attacked as excessive, it is necessary to prove the value of the life-estate, and that the land is capable of being subdivided into parcels, the sale of one or more of which would satisfy the execution. The evidence here failed to show either, and a nonsuit on this issue was demanded.
2. An innocent purchaser at a judicial sale is not chargeable with the neglect of duty on the part of the sheriff to advertise as required by the Code, § 39-1101. He is only required to see that the officer has authority to sell, and that he is apparently proceeding under the prescribed forms. The title of such an innocent purchaser is not affected by the sheriff's failure to advertise the sale.
No. 13496. OCTOBER 15, 1940.
This is an action seeking recovery of a three and one-half acre tract of land in the City of Toccoa, Stephens County, Georgia. Upon the trial the plaintiff introduced evidence in substance as follows: In 1912 a life-estate in 26.7 acres of land, embracing the land here involved, was conveyed to the plaintiff by deed. The plaintiff resided thereon until January, 1921, when she was carried to the home of a brother in South Carolina. For a number of years she had been suffering epileptic fits, and her mind was so affected that she was unable to transact business. In November, 1921, she was adjudged insane by a proper court of the State of South Carolina, and was committed to the State Hospital, where she has remained continuously to the present time. A. B. Collier was appointed guardian of plaintiff's property in Stephens County, in 1939. On the first Tuesday in May, 1921, the plaintiff's life-estate in the 26.7 acre tract of land was sold by the sheriff of Stephens County, under a tax execution against the plaintiff for 1920 taxes in the principal sum of $10.50. The sheriff's deed conveying all the interest of the plaintiff in the land to G. G. Edmundson for $175, the amount of his bid at the sale, was executed on May 4. The sheriff's return of the sale recited that $35.10 had been applied to the satisfaction of the execution and costs, and that the balance of $139.90 was in his hands. The execution, the levy thereunder, the sheriff's deed, and the deed to the plaintiff in 1912 were introduced in evidence. One witness testified, that he was familiar with the 26.7-acre tract of land in 1920 and 1921, and that it was at that time worth $1000, counting the sawmill timber which was on it; that the life-estate in this land of plaintiff, who was thirty years old in 1920, was worth about $500, but that he did not know precisely the definition of a life-estate. Two witnesses testified that the land could have been divided into a number of marketable tracts, to wit: the home place lot, the timber land, a three and one-half acre tract that was later sold to the City of Toccoa, and several building lots on Louisa Street. The plaintiff put in evidence the 1921 volume of the Toccoa Record, the official organ of Stephens County, which showed that an advertisement of the tax sale appeared therein in the issues of March 10, 17, 24, and 31, reciting that the sale would be held on the first Tuesday in April, 1921; and showing further that no advertisement of the sale appeared during the month of April, 1921, or during either of the four weeks immediately preceding the first Tuesday in May, which was the date of the sale. With this evidence the plaintiff rested. On motion a judgment of nonsuit was rendered, and the plaintiff excepted.
The attack upon the judgment of nonsuit is based upon two contentions: (1) That the evidence made a case of excessive levy. (2) That the evidence showed that the sheriff's sale was not advertised as required by law. It is contended that for these reasons the sale was void, and that the sheriff's deed did not divest the plaintiff of title.
1. To determine whether or not the levy was excessive it is first necessary to find what property was sold. The tax execution was against the plaintiff for taxes due by her to the State and county for the year 1920. Neither the execution nor any other evidence in this record shows it to have been for taxes on the specific property sold. Had the sale been made for the taxes on that specific property alone, although the plaintiff owned only a life-estate, the fee would have passed, and the sale would have affected the remainder as well as the estate for life. But since the property was sold as the plaintiff's property under an execution against her, only the interest of the tenant for life was levied upon or passed by the sale. Clower v. Fleming, 81 Ga. 247 (2) ( 7 S.E. 278); Howell v. Lawson, 188 Ga. 164 ( 3 S.E.2d 79). Therefore, in order to prove that the levy was excessive, it was necessary for the plaintiff to prove the value of the life-estate. This was not done by showing that the land was worth $1000. See Keeter v. Bank of Ellijay, 190 Ga. 525 ( 9 S.E.2d 761). The life-tenant could not, under the law, encroach upon or consume the interest of the remainderman. As a life-tenant she could use the property, and her life-estate therein was worth only such profits as the land would yield. All of the evidence showing that the land was capable of subdivision evidently referred to a division of the fee; but if such subdivision is applied to the life-estate, the question arises, what value to the life-tenant would any of the vacant parcels have. From the timbered tract she could take timber for reasonable repairs, but she would have no right to sell the timber where such sale was not an incident to the reasonable enjoyment of her estate. Smith v. Smith, 105 Ga. 106 (2) ( 31 S.E. 135); Lee v. Rogers, 151 Ga. 838 ( 108 S.E. 371); Willie v. Hines-Yelton Lumber Co., 163 Ga. 64 ( 135 S.E. 505). The evidence was silent as to whether or not there was a building on the home lot. It must be held that proof of the value of the land and the age of the life-tenant was not sufficient evidence to authorize the jury to fix a value on the life-estate in the land, and thus find that the levy was excessive. The only testimony as to the value of the life-estate is completely nullified by testimony of the same witness that he could not define the meaning of a life-estate. The only remaining circumstance is the amount for which the property was sold, but this is insufficient to authorize a verdict that the levy was excessive.
2. There was no advertisement of the sale, as required by the Code, § 39-1101. Under this statute the duty was imposed upon the sheriff to publish weekly, for four weeks immediately preceding the sale, notice of the sale. The statute does not provide that the sale is void if the sheriff fails to perform his duty. The purchaser, if innocent, has rights under such sale, and these rights can not be destroyed by failure of the sheriff to perform the duties which the statute imposes upon him. Under § 39-1311, all such irregularities create liabilities against the officer, and the innocent purchaser shall be bound only "to see that the officer has competent authority to sell, and that he is apparently proceeding to sell under the prescribed forms." Under the facts in the present case the sale was valid, and the purchaser's title was not affected by the sheriff's failure to advertise. Brooks v. Rooney, 11 Ga. 423 (56 Am. D. 430); Hendrick v. Davis, 27 Ga. 167 (73 Am. D. 726); Johnson v. Reese, 28 Ga. 353 (73 Am. D. 757); Johnson v. Reese, 31 Ga. 601; Conley v. Redwine, 109 Ga. 640 (2) ( 35 S.E. 92, 77 Am. St. R. 398). The judgment of nonsuit was not erroneous for either of the reasons assigned.
Judgment affirmed. All the Justices concur.