Opinion
No. 35590.
May 22, 1944. Suggestion of Error Overruled September 25, 1944.
1. SHERIFFS AND CONSTABLES.
Where warrant for sale of goods for failure to pay sales tax was regular on its face and was without defect in its contents when considered as a warrant for the sale and not an assessment, the warrant would protect the sheriff if he proceeded as the law directed and without any fault on his part, although no assessment had been made in the manner required by law.
2. SHERIFFS AND CONSTABLES.
Where sheriff gave only eight days' notice of sale of goods because of failure to pay sales tax and not ten days' notice as required by statute, sale of goods was such misconduct that sheriff was no longer entitled to protection of the writ, and if sued in trespass his defense could not rest upon the process nor be used in diminution of damages.
3. JUDICIAL SALES.
Where owner, whose personalty had been sold under a void warrant of sale or at an improper time of which the owner then knows, voluntarily delivers the personalty to the purchaser or takes active steps to that end without warning or notice to purchaser who pays his money without notice, title passes to purchaser on such delivery and the owner cannot thereafter disturb him.
4. SHERIFFS AND CONSTABLES.
Where owner of personalty acquiesced in sale by sheriff for failure to pay sales tax and gave no notice to purchaser and delivered property sold by sheriff to purchaser, owner was not entitled to demand more from sheriff than sheriff had received for the goods at the sale, and, where sheriff remitted $481.90 to State Tax Commission as warrant directed, sheriff was protected, but was not protected as respects amount retained for cost where sale was made without legal notice.
5. APPEAL AND ERROR.
Where case had been fully developed and amount appellant was entitled to recover had been established, judgment would be rendered for such amount without the formality of a remand.
APPEAL from the circuit court of Panola county, HON. JOHN M. KUYKENDALL, Judge.
T.N. Gore, of Marks, and W.E. Gore, of Jackson, for appellant.
This is a suit for the value of a stock of merchandise converted by the sheriff of Panola County, which he seized and sold under a void warrant, issued by the chairman of the State Tax Commission, without an assessment to support it. The demand was made on account of the pretended indebtedness of the plaintiff for unpaid Sales Taxes.
Code of 1942, Secs. 10108, 10120; Laws of 1934, Chap. 122, Sec. 2-c; Laws of 1938, Chap. 113, Sec. 9.
Recovery of the value of the merchandise is demanded on account of two distinct torts, either of which constitutes conversion and makes the sheriff and his surety liable for the market value of the merchandise. The first act constituting conversion consisted in the seizure and sale of the merchandise on a void warrant, issued without a determination of the amount of, and liability for, the payment of the tax. The second act of conversion consisted in the sale of the merchandise on eight instead of ten days' notice of the sale.
The sheriff, having admitted the seizure and sale of the merchandise, was bound to justify his action by showing that he had in his hands a valid warrant fair on its face or that it was based on a valid order of assessment by the commissioner.
Rigby v. Stone, 194 Miss. 775, 11 So.2d 823, 824, 825; Tittle v. Bonner, 53 Miss. 578, 583, 586; Powers v. Presgroves, 38 Miss. 227; Yazoo M.V.R. Co. v. Grant, 86 Miss. 565, 38 So. 502; Bessler Movable Stairway Co. v. Bank of Leakesville, 140 Miss. 537, 106 So. 445; Southeastern Express Co. v. Namie, 182 Miss. 447, 181 So. 515; Cone v. Virginia-Carolina Chemical Corporation, 178 Miss. 816, 174 So. 554; Yazoo M.V.R. Co. v. M. Levy Sons, 141 Miss. 199, 106 So. 525; Austin Clothing Co. v. Posey, 105 Miss. 720, 64 So. 5, 1 A.L.R. 13; Brooks v. Gillis, 12 Smedes M. (20 Miss.) 538; Fox v. Hilliard, 35 Miss. 160, 163, 164; Lamar v. Williams, 39 Miss. 342, 345; Miller v. Lamar, 43 Miss. 383, 391; Wofford v. Ashcraft, 47 Miss. 641; Osborne v. Crump, 57 Miss. 622; Keeton v. State, 175 Miss. 631, 167 So. 68; Stevens v. Locke, 156 Miss. 182, 125 So. 529; Eaton v. State, 163 Miss. 130, 140 So. 729; Board of Review v. Williams, 195 Miss. 618, 15 So.2d 48; Striplin v. Mobile O.R. Co., 152 Miss. 512, 120 So. 193; Cain v. Moyse, 71 Miss. 653, 15 So. 115; Selby v. Bardons, 3 Barn. A. 1; Bean v. Beckwith, 18 Wall. 510, 21 L.Ed. 849; Beckwith v. Bean, 98 U.S. 266, 8 Otto. 266, 25 L.Ed. 124; Hays v. Pacific Mail Steamship Co., 58 U.S. 596, 17 How. 596, 15 L.Ed. 254; Poindexter v. Greenhaw, 5 S.Ct. 903, 962, 114 U.S. 270, 330, 29 L.Ed. 185, 207; White v. Greenhaw, 5 S.Ct. 903, 962, 114 U.S. 307, 29 L.Ed. 199, 207; Chaffin v. Taylor, 5 S.Ct. 924, 926, 114 U.S. 309, 29 L.Ed. 198, 207; Fuller v. Rood, 3 Hill. 258; Edward Hines Yellow Pine Trustees v. Stewart, 46 F.2d 910; Stewart v. Edward Hines Yellow Pine Trustees, 51 S.Ct. 654, 283 U.S. 861, 75 L.Ed. 1466; Code of 1906, Sec. 994; Code of 1930, Secs. 521, 531, 536, 543, 743; Code of 1942, Secs. 1464, 1475, 1480, 1487, 1658, 10133; Griffith's Chancery Practice, Sec. 553; Laws of 1938, Chap. 113, Sec. 11; 20 Am. Jur., Secs. 137, 146; 41 Am. Jur., Pleading, Sec. 160; Walker's American Law (4 Ed.), pp. 586, 594, 596; Caruthers' History of a Law Suit, pp. 187, 222; Puterbaugh's Common Law Pleading, pp. 366, 367, 373, 377; 1 Chitty's Pleading, 13 Am. Ed., p. 500; Crogate's Case, 8 Coke, 77 Eng. Law Reports, Reprint, p. 574; 14 Enc. of Pleading and Practice, 1088, 1090; Supreme Court Rule XIV; Starkie's Evidence, 8th American Edition, 533, 534.
No assessment having been made by the chairman, the defendants had the burden of proving that he appointed a deputy and that the deputy made a valid assessment.
Code of 1942, Secs. 10108, 10120, 10133; Laws of 1938, Chap. 113, Sec. 6; Laws of 1938, Chap. 122, Sec. 1.
It was the duty of the sheriff to prove that the commissioner complied with every provision of the statute and that a valid assessment had been made and notice given before it became final.
Seward v. Wales, 40 N.Y. App. Div. 539, 58 N.Y. Sup. 42; Shaffer v. Riseley, 114 N.Y. 23, 20 N.E. 630; Bullymore v. Cooper, 46 N.Y. 236, 241; 57 C.J., Sheriffs, Sec. 530.
It was the duty of the commissioner to make a full and complete record of an assessment of the taxes. No order was made and no record was made. Such a record is the sole evidence of an assessment. Therefore, there was no assessment.
Howard v. Walters, 2 Miss. Dec. 187; Crump v. Sup'rs of Colfax County, 52 Miss. 107; Bridges v. Board of Sup'rs of Clay County, 58 Miss. 817; Marion County v. Woulard, 77 Miss. 343, 27 So. 619; Gilchrist-Fordney Co. v. Keyes, 113 Miss. 742, 74 So. 619; Viator v. State Tax Commission, 193 Miss. 266, 14 So.2d 212; Code of 1871, Sec. 1361; Code of 1930, Chap. 9, Sec. 211; Code of 1942, Secs. 2886, 9216; Laws of 1934, Chap. 158, Sec. 1.
The warrant was not fair on its face, in that it did not recite the jurisdictional facts to justify its issuance and a compliance with the provisions of the statute imposing the taxes and authorize the levy and sale of the merchandise. The warrant was void because it did not set out the jurisdictional facts to constitute a valid assessment. The validity of the warrant depends on a valid assessment. There was no authority to issue it in the absence of a finding and adjudication by the chairman, evidenced by a written order, of all the jurisdictional facts under which he was authorized to make an assessment. It is not material that these facts existed and no evidence aliunde the order is admissible to establish an assessment.
Ballard v. Davis, 31 Miss. 525; Bolivar County v. Coleman, 71 Miss. 832, 15 So. 107; Temple v. Hammock, 52 Miss. 360, 366; Lake v. Perry, 95 Miss. 550, 49 So. 569; McHenry v. State, 91 Miss. 562, 44 So. 831; Wilson v. Alabama G.S.R. Co., 77 Miss. 714, 28 So. 567, 52 L.R.A. 357, 78 Am. St. Rep. 543; Lester v. Miller. 76 Miss. 309, 24 So. 193; Harriss v. State, 72 Miss. 960, 18 So. 387; Adams v. First Nat. Bank, 103 Miss. 744, 60 So. 770; Robertson v. First National Bank of Greenwood, 115 Miss. 840, 76 So. 689; Aden v. Board Sup'rs of Issaquena County, 142 Miss. 696, 107 So. 753; Craft v. DeSoto County, 79 Miss. 618, 31 So. 204; Hayes v. Federal Land Bank, 162 Miss. 877, 140 So. 340; Broom v. Board of Sup'rs of Jefferson Davis County, 171 Miss. 586, 158 So. 344; Henderson Molpus Co. v. Gammill, 149 Miss. 576, 115 So. 716; Gordan v. Smith, 154 Miss. 787, 122 So. 762; McDevitt v. Walls (Miss.), 122 So. 766; City of Jackson v. Belhaven College, 195 Miss. 734, 15 So.2d 621, 623; Linn v. Kyle, Walk. (1 Miss.), 315; Stockett v. Nicholson, Walk. (1 Miss.), 75; Code of 1942, Secs. 9216, 10108, 10120; Laws of 1934, Chap. 122, Sec. 1; Laws of 1934, Chap. 158; Laws of 1938, Chap. 113, Sec. 6; Constitution of 1890, Sec. 170.
The warrant and the assessment were void because there was no finding of the necessary facts as required by the Federal and State Constitutions. Taking and selling the merchandise in the absence of such findings of fact constituted depriving the appellant of his property without due process of law.
United States ex rel. Kansas City Southern Railroad Co. v. Interstate Commerce Commission, 252 U.S. 178, 64 L.Ed. 717, 40 S.Ct. 187; California Adjustment Co. v. Atchison, T. S.P.R. Co., 179 Cal. 140, 175 P. 682, 13 A.L.R. 274; Railroad Commission v. Red Arrow Freight Lines, 96 S.W.2d 735; United States v. Chicago St. P.R. Co., 262 U.S. 311, 75 L.Ed. 359, 51 S.Ct. 139; Panama Refining Co. v. Ryan, 293 U.S. 388, 79 L.Ed. 446, 55 S.Ct. 241; Wichita Railway Light Co. v. Public Utilities Commission, 260 U.S. 48, 67 L.Ed. 124, 43 S.Ct. 51; Mahler v. Eby, 264 U.S. 32, 68 L.Ed. 349, 44 S.Ct. 283.
There was no valid assessment of the taxes demanded.
Howard v. Walters, 2 Miss. Dec. 187.
The conduct of the plaintiff here is not such as would estop him to recover damages for the conversion. Estoppel by conduct arises from an act or declaration fraudulently intended or calculated to mislead another on which the other has relied and so acted or refrained from acting that injury will befall him if the truth of the act or declaration be denied.
Staton v. Bryant, 55 Miss. 261; Davis v. Butler, 128 Miss. 847, 91 So. 279, 709; Eagle Lumber Supply Co. v. DeWeese, 163 Miss. 602, 135 So. 490; Day v. McCandless, 167 Miss. 832, 142 So. 486; Plant Flour Mills Co. v. Sanders Ellis, 172 Miss. 539, 157 So. 713; Sulphine v. Dunbar, 55 Miss. 255; Murphy v. Jackson, 69 Miss. 403, 13 So. 728; Scottish-American Mortgage Co. v. Bunckley, 88 Miss. 641, 41 So. 502, 117 Am. St. Rep. 763; Pace v. Pace, 107 Miss. 292, 65 So. 273; Davidson v. Plant, 113 Miss. 482,
74 So. 328; Bridge Creek Drainage District v. Webster, 168 Miss. 115, 150 So. 915; Garmon v. Fitzgerald, 168 Miss. 532, 151 So. 726; Izard v. Mikell, 173 Miss. 770, 163 So. 498; Mississippi State Highway Commission v. West, 181 Miss. 206, 179 So. 279; Hopkins v. Hopkins, 174 Miss. 643, 165 So. 414; Mississippi Power Light Co. v. Pitts, 181 Miss. 344, 179 So. 363.
There is a clear distinction between the measure of proof necessary to establish the fact that the plaintiff has sustained some damages and the measure of proof necessary to enable the jury to fix the amount. Formerly, the tendency was to restrict the recovery to such matters as were susceptible of having attached to them an exact pecuniary value, but it is now generally held that the uncertainty which prevents a recovery is uncertainty as to the fact of damages and not as to its amount and that where it is certain that damage has resulted, mere uncertainty as to the amount will not preclude the right to recover. This view has been sustained where, from the nature of the case, the extent of the injury and the amount of damages are not capable of exact and accurate proof. Under such circumstances all that can be required is that the evidence with such certainty as the nature of the particular case may permit lay a foundation which will enable the triers of facts to make a fair and reasonable estimate, and the plaintiff will not be denied a substantial recovery if he has produced the best evidence available and it is sufficient to afford a reasonable basis for estimating his loss. The requirement of certainty does not prevent the drawing of reasonable inferences from the facts and circumstances in evidence; and where a tort is of such a nature as to preclude the ascertainment of the damages with certainty, it is enough if the evidence shows the extent of the damages as a matter of just and reasonable inference, although the result is only approximate.
15 Am. Jur., Damages, Sec. 23.
See also Beach v. Johnson, 102 Miss. 419, 59 So. 800, Ann. Cas. 1914D, 33; Shell Petroleum Corporation v. Yandell, 172 Miss. 55, 158 So. 787, 790; Montgomery Ward Co. v. Hutchinson, 173 Miss. 701, 159 So. 862; Mississippi Power Light Co. v. Pitts, supra; Hawkins Hardware Co. v. Crews, 176 Miss. 434, 169 So. 767, 769; Parker v. Levin, 285 Mass. 125, 188 N.E. 502, 90 A.L.R. 1446; Howe v. Teefy, 27 N.S.W. St. Rep. 301, 16 B.R.C. 792; Grass v. Big Creek Development Co., 75 W. Va. 719, 84 S.E. 750, L.R.A. 1915E, 1057.
The contention is made that there is no liability on the part of the surety because no proof of the execution of the bond was made. Under the provisions of Section 1750, Code of 1942, Code of 1930, Sec. 1587, proof of the execution of the bond was not required, since the bond was pleaded in writing and no special plea was filed by the surety company or the sheriff, verified by oath.
Panola County Bank v. J.O. Nessen Lumber Co., 117 Miss. 593, 78 So. 516; Covington v. Columbia Military Academy, 194 Miss. 99, 11 So.2d 807; Code of 1942, Sec. 1756, Code of 1930, Sec. 1593.
Peremptory charges should be given only where the evidence, taken as absolutely true, and might be so found by the jury, establishes no legal right or fails to maintain the issue. If, in the case at hand, there had been no other testimony than that for the plaintiff, it would hardly have been warranted to instruct peremptorily for defendant, even though the trial judge might have not believed it.
Fore v. Alabama Vicksburg R. Co., 87 Miss. 211, 39 So. 493, 494; Anderson v. Cumberland Telephone Telegraph Co., 86 Miss. 341, 38 So. 786; Alexander v. Zeigler, 84 Miss. 560, 36 So. 536; Holmes v. Simon, 71 Miss. 245, 15 So. 70; State ex rel. Guiney v. Spengler, 74 Miss. 129, 21 So. 4; Strauss v. National Parlor Furniture Co., 76 Miss. 343, 24 So. 703; Gibson v. W.C. Wood Lumber Co., 91 Miss. 702, 45 So. 834; Bolling v. Red Snapper Sauce Co., 97 Miss. 785, 53 So. 394; Hayes v. Slidell Liquor Co., 99 Miss. 583, 55 So. 356; Mobile Ohio R. Co. v. Cox, 153 Miss. 597, 121 So. 292.
The sale was void, the sheriff was a trespasser and guilty of conversion.
Vansant v. Dodds, 164 Miss. 787, 144 So. 688; McSwain v. Young, 111 Miss. 686, 72 So. 129; Planters' Mercantile Co. v. Braxton, 120 Miss. 470, 82 So. 323; Crump v. Tucker, 149 Miss. 711, 115 So. 397; Smith v. Deas, 158 Miss. 111, 130 So. 105; Shaffer v. Price 260 N.W. 703, 98 A.L.R. 689; 28 Am. Eng. Encyl. (2 Ed.), 696, Sec. 14; 26 R.C.L. 1120, Trover, Sec. 31; 98 A.L.R. 690; Code of 1930, Secs. 3037, 3038.
The measure of damages for the conversion of property is the value of the property at the time of conversion, with interest thereon to the time of the trial.
Ingram Day Lumber Co. v. Robertson, 129 Miss. 365, 92 So. 289; Hinds v. Terry, Walk (1 Miss.), 80; Texada v. Camp, Walk. (1 Miss.), 150; Whitfield v. Whitfield, 40 Miss. 352; Bickell v. Colton, 41 Miss. 368; Jamison v. Moon, 43 Miss. 598; Taylor v. Morton, 61 Miss. 24.
See also Heard v. James, 49 Miss. 236; Sumrall Motor Co. v. Creel, 158 Miss. 262, 130 So. 151; Briscoe v. McElween, 43 Miss. 556; Bank of Forest v. Capital National Bank, 176 Miss. 163, 169 So. 193; Skrmetta v. Clark, 180 Miss. 21, 177 So. 11; Lancaster v. Jordan Auto Co., 185 Miss. 530, 187 So. 535; Carrier v. Esbaugh, 70 Pa. 239.
The error here committed is in holding that the measure of damages is the difference between what the property would have sold for if proper notice had been given and what it sold for.
Bonner v. Lockhart (Ala.), 181 So. 767, 768; Maple Leaf Lumber Co. v. Caldwick, 39 Ont. L. 201, 12 Ont. W.N. 81; Carrier v. Esbaugh, supra; Windborn v. Bryan, 73 N.C. 47, 50; Wright v. Spencer (Ala.), 1 Stew. 576, 18 Am. Dec. 76; Dean v. Lusk, 241 Ala. 519, 3 So.2d 310; 51 C.J. 869.
Compare Vansant v. Dodds, 164 Miss. 787, 144 So. 688.
It is submitted that Vansant v. Dodds, supra, and In gram Day Lumber Co. v. Robertson, supra, govern in this state, and in this case, the one in holding the sale to be void, and the other in holding that the value of the property at the time of the conversion, with interest to the time of the trial, constitutes the measure of damages.
J.B. Boyles, of Batesville, and Herbert M. Fant, of Sardis, for appellees.
The appellant is estopped. He knew that the sale was being advertised for less than ten days, and he called this to the attention of some of his neighbors shortly after the notice was posted on January 22nd. He knew prior to the sale that the law required advertisement for at least ten days, having been so advised by his attorney. He attended the sale in person and made inquiry as to whether it would be permissible for him to bid on the stock of merchandise. Upon being informed that it would not be advisable for him to bid, he procured a slight delay in order that he might arrange for his wife to be present and bid at the sale. Mrs. Rigby made a bid of $125. He made no objection or protest to the sale on account of the insufficiency of the advertisement. Without suggesting or pointing out any insufficiency at all in the advertisement, he asked Whitten at the sale whether Whitten thought the sale had been properly advertised. Whitten replied in the affirmative and the appellant said nothing further although he was fully advised as to both the law and the facts concerning the insufficiency of the advertisement. After Comer had raised Mrs. Rigby's bid and had become the purchaser, the appellant made no objection to the stock of merchandise being turned over to Comer. On the contrary, the appellant recognized Comer as the legal owner of the stock of merchandise; he disclaimed any interest therein; and he demanded that Comer move the stock of merchandise out of his (the appellant's) building. The net proceeds of the sale ($481.90) were duly paid over by Whitten to the State Tax Commission; and, instead of repudiating the sale and disclaiming any interest in the proceeds thereof, the appellant claimed the benefit of this payment.
Our position is that, conceding the legal insufficiency of the advertisement of the sale, the appellant's behavior with respect to the sale precludes him from challenging the validity of the sale on the ground of an insufficient advertisement thereof. Stated somewhat differently, our position is that the insufficiently advertised sale, coupled with the appellant's behavior, was sufficient to vest title in Comer, the purchaser; and that, consequently, the appellant does not now have a title on which he may maintain a suit in trover against Whitten, Comer or anyone else.
Magee, Admr., v. Gregg, 11 Smedes M. (19 Miss.), 70; Duke v. Clark, 58 Miss. 465; Hamilton v. Federal Land Bank, 184 Miss. 878, 186 So. 832; Kelso v. Robinson, 172 Miss. 828, 161 So. 135.
Although the doctrine of estoppel is of equitable origin, estoppel is not limited to equity cases, but may also be interposed as a defense to a suit at law.
26 R.C.L. 1144; 19 Am. Jur. 830; 65 C.J. 68.
The appellant failed to prove the value of the merchandise. No effort was made to establish the contents of the inventory; and, consequently, the jury did not have before it any description of any single article in the store or any estimate of the value of any article. The whole proof was that the appellant estimated the whole stock of merchandise to have a certain value on the date of the levy.
First National Bank v. Montgomery, 70 Miss. 550, 13 So. 242; Citizens Bank of Coldwater v. Callicott, 178 Miss. 747, 174 So. 78.
The appellant's proof showed no liability on the surety. The surety did not file a sworn plea denying the execution of the bond; and, under Section 1593 of the Code of 1930, its failure so to do enabled the appellant to prove the existence of the bond by introducing a copy thereof certified by the chancery clerk. However, the appellant failed to introduce a certified copy and failed to offer any proof as to the existence of such a bond. In fact, neither the bond nor even the name of the surety company is mentioned at any place in the proof, and the lower court should have sustained the surety's separate motion for a directed verdict in its favor.
Carlisle v. Silver Creek, 85 Miss. 380, 37 So. 1015; Code of 1930, Secs. 526-527, 1587, 1593.
Argued orally by W.E. Gore and T.N. Gore, for appellant.
This is the second appearance of this case in this court. When first here the action was sought to be maintained against the chairman of the State Tax Commission, as well as against the sheriff, and was entitled Rigby v. Stone et al., and it was decided that there was no cause of action against any of the defendants. See Rigby v. Stone et al., 194 Miss. 775, 11 So.2d 823. On suggestion of error the prior decision was withdrawn so far as concerned the sheriff, and it was held that because the sheriff sold the property for which he held a warrant without giving the ten days' notice "the writ ceased to protect him, and consequently he was without the right to then sell the property, and by selling it became guilty of its conversion, the measure of damages for which, in the absence of special circumstances not here in evidence, is the value of the property, market value if such it has, at the time and place of its conversion with interest thereon." See Rigby v. Stone et al., 194 Miss. 775, 13 So.2d 230, 231.
Upon the second trial, following the remand, the court instructed the jury in accord with the law of the case as above quoted, but the jury returned a verdict for the defendant sheriff, and the court, on motion, declined to set the verdict aside, although offering to do so if the plaintiff would accept a judgment for nominal damages, which the plaintiff declined; and he has appealed.
Although we may concede that no assessment in the manner required by law — as to which see Viator v. State Tax Commission, 193 Miss. 266, at page 296, 14 So.2d 212 — had been made for the additional taxes for which the warrant was issued, the warrant was regular on its face and was without defect in its contents when considered as a warrant for the sale, and not as an assessment, wherefore it would have protected the sheriff as against any offensive action against him had he proceeded under it as the law directs and without any fault on his part. 1 Freeman on Executions (3 Ed.), Secs. 101, 102, pp. 362, et seq. But instead of doing so, he gave only eight days' notice of sale, and not the ten days required by statute; and in that case the rule as laid down in 2 Freeman, Sec. 286, p. 1659, is that "the selling of property under execution by an officer, without previously giving the notice of sale required by the statute is such misconduct that the officer is no longer entitled to the protection of his writ. The result of this must be that, if sued in trespass his defense cannot rest upon the process nor can it be used in diminution of damages."
It was in accord with that rule that we used the language in our opinion on the suggestion of error quoted in the first paragraph of the present opinion, and in which, "in the absence of special circumstances," the measure of the damage was held to be the market value of the goods.
On the second trial, the one now before us, there were developed further facts, or special circumstances, not theretofore shown, and these further facts are as follows: Although appellant had previously protested to the sheriff that no valid assessment had been made against him and that the legal notice had not been given, he appeared at the sale, and requested the sheriff to delay for a few minutes and until appellant could bring his wife to bid, and his wife did appear and made a bid of $125. Comer was the highest bidder at $500, and was declared the purchaser. A day or two thereafter appellant, according to his own testimony, complained to Comer that the latter had not come to take the merchandise away and requested Comer do so without further delay, the goods being situated in appellant's building; and appellant made no complaint to Comer either then or when Comer came to get the goods and did get them, that there was any irregularity or illegality in the sale, or that he had any cause to deny Comer's right to take them. Appellant did not make any public announcement at the sale so as to be heard by bidders that there was anything wrong with it, and so far as the evidence discloses, Comer, the purchaser, was wholly without warning or notice from appellant or anyone else that he was not getting, upon the payment of his money, a good title to the property.
In 21 Am. Jur., p. 96, citing Rawles v. Jackson, 104 Ga. 593, 30 S.E. 820, 69 Am. St. 185, it is said that the voluntary surrender of property sold under execution is a waiver of irregularities in the sale. In 33 C.J.S., Executions, Sec. 228, p. 484, it is said that such surrender of possession does not estop the execution debtor from attacking a void sale. See also 23 C.J., p. 668, note 77. The cases cited under these texts are land cases. No case involving the precise point, when the sale has been of personalty, has been cited to us, nor have we been able in the time at our disposal to find such a case.
It is appellant's contention, already mentioned, that no valid assessment had been made against him, and he asserts that he knew this well before the day of sale, and he admits he knew also that the required legal notice had not been given. Against the seizure and sale of his property, both or either of his said contentions being true, the law furnished him, then and there, ample means of protection, but appellant took no manifest steps to that end; and, having the stated knowledge, he was by consequence under no such legal compulsion of submission as would prevent invocation against him, as a defense to the present action, of the doctrines of acquiescence, or waiver or estoppel, call it either of these.
Therefore as to personalty, title to which may vest by delivery, we are of the opinion that when the owner, whose property has been sold under a void warrant of sale, or at an improper time, of which the owner then knows, voluntarily delivers the property to the purchaser, or takes active steps to that end, as was the case here, without giving any warning or notice whatever at any time or in any manner to the purchaser and the latter pays his money without notice, the title passes to the purchaser on such delivery and the owner cannot thereafter disturb him.
Title having thus passed to the purchaser, not by virtue of the sale but by the voluntary conduct of the owner, acting with knowledge and without any sort of compulsion, and the owner being bound, so far as the purchaser is concerned, which would include, of course, acquiescence in the price paid by the purchaser, so that the owner could not thereafter demand of the purchaser any additional price, may the owner in such a case in an action against the sheriff demand more than the sheriff received from the purchaser as the proceeds of the sale? Inasmuch as the owner could not, under the stated circumstances and under obvious principles of justice, demand more of the purchaser, and must be considered as having elected to accept, so far as the purchaser is concerned, the price paid by him as a fair value for the goods sold, we think he ought to be bound by the same election as to the sheriff in the matter of value. For, if the owner had not acted as he did in respect to the purchaser, but on the contrary had warned or notified the purchaser that the sale was invalid, the purchaser might have declined to pay the amount of his bid, whence instead of an immediate pursuit of the purchaser and as an alternate course another sale could have been had upon proper legal notice, and about which the sheriff would not have been liable at all.
Out of the proceeds of the sale the sheriff remitted $481.90 to the State Tax Commission, the tribunal from which the warrant issued, and retained the balance of $18.10 for costs. The final question is whether the sheriff is entitled to credit for these sums. Recurring to the rule heretofore set out that when a sheriff sells without lawful notice he is not entitled to the protection of the writ and that the writ cannot be used in diminution of damages, and applying that rule literally, the sheriff would be entitled to no credit. The majority of the court is of the opinion, however, that the rule has reference to the damage growing out of that which the sheriff himself did on his own direction to make the sale illegal and in respect to which he departed from his duties under the warrant, and is not to be invoked as to acts which the sheriff did within, and in strict pursuance to, the command of the warrant.
In remitting the $481.90, the sheriff acted as the warrant directed, and is to that extent protected. Mechem, Public Officers, Sec. 694. In making the sale without legal notice, he did not act as the warrant directed and can retain no costs therefor. We have already said that no title passed by virtue of the sheriff's sale but only by the owner's conduct as related to the purchaser, and that had the owner's conduct not been what it was the sheriff would have had opportunity to resort to another sale with proper notice. Had a second sale been made the sheriff would not have been entitled to fees for two sales but for only the second one. He did not make a second sale, and is entitled to no fees for the first which was invalid. There can be no rightful legal fees for a wrongful legal service; no valid fees for an invalid sale, when the invalidity was by the wrong of the officer himself.
Appellant is entitled in any event to the $18.10 which the sheriff retained as his costs, and since under his own testimony appellant is entitled to no more, and because upon a remand no other result on the facts, admitted by appellant himself, could be reached, we think that technical rules of procedure are not to be enforced to the extent to require the ceremony of a remand, but that judgment ought to be, and will be, rendered here reversing the judgment of the trial court and allowing recovery to the appellant in the sum of $18.10.
Reversed and judgment here for appellant.
DISSENTING OPINION.
On the evidence the appellant is not entitled to recover anything and the judgment of the court below should be affirmed.
The requirement of the statute that personal property shall be sold under an execution on ten days' public notice thereof is for the protection of the judgment creditor and the judgment debtor, and either can waive it or be estopped from pleading it. The judgment creditor is not here complaining, and, in my opinion, the judgment debtor, the appellant, is estopped by his conduct from pleading it. It is clear to me from the evidence that the publishing of this notice of sale for only eight days was an inadvertence on the part of the appellee, and when the appellant called his attention thereto, his, the appellant's, conduct then, thereafter, and at the sale was such as to induce the appellee to believe that he had waived this error in the publishing of the notice. Without this, all the appellant would have had to do was to readvertise the sale for ten days, and this, because of the appellee's conduct, as hereinbefore stated, he was justified in not doing. Consequently, in my opinion, the sale of the property by the appellee under the execution was valid.