O.C.G.A. § 9-13-167 (2019)

Annotations

JUDICIAL DECISIONS Purpose of this section is merely to give notice that sheriff ’s sale does not pass title to property not owned by the defendant in fieri facias even though it be actually included in the sale, unless under other facts and circumstances the true owner is estopped from asserting the owner’s own title. Brooks v. Guthrie, 42 Ga. App. 296, 155 S.E. 793 (1930). Applicability of caveat emptor doctrine. - First sentence of this section makes doctrine of caveat emptor apply to judicial sales. But a purchaser is not affected by secret equities between the parties. Johnson v. Equitable Sec. Co., 114 Ga. 604, 40 S.E. 787 (1902); Equitable Loan & Sec. Co. v. Lewman, 124 Ga. 190, 52 S.E. 599 (1905); Scarborough v. Holder, 127 Ga. 256, 56 S.E. 293 (1906). Caveat emptor applies to judicial sales. Milam v. Adams, 216 Ga. 440, 117 S.E.2d 343 (1960). Rule of caveat emptor applies to administrator’s sales. Moore v. Hartford Accident & Indem. Co., 102 Ga. App. 514, 117 S.E.2d 206 (1960). Doctrine of caveat emptor is applicable when purchaser at sheriff ’s sale gets defective title, and also when no title to the property sold passes to the purchaser, the sheriff ’s sale being void on account of a grossly excessive levy. Brady v. Smotherman, 51 Ga. App. 480, 180 S.E. 862 (1935). Purchaser at tax sale comes within rule of caveat emptor, and is chargeable

with knowledge of defects which the record discloses, notwithstanding statements of individuals. Pittman Constr. Co. v. City of Marietta, 177 Ga. 573, 170 S.E. 669 (1933); Timpson v. Simmons, 188 Ga. App. 793, 374 S.E.2d 356 (1988). Purchaser at judicial sale must keep one’s eyes open, and look personally as to the state of title the purchaser will obtain by the sale. The execution dockets and other records are open to the purchaser; and it is the purchaser’s duty, if the purchaser wishes to be protected, to ascertain the status of the title. Kurfees v. Davis, 178 Ga. 429, 173 S.E. 157 (1934). Purchaser must at the purchaser’s peril ascertain that officer has competent authority to sell under prescribed forms. Brady v. Smotherman, 51 Ga. App. 480, 180 S.E. 862 (1935). Purchaser must personally determine the validity of judgment and execution issued thereon, the levy made by the sheriff, and the sale or deed of the property. The purchaser buys at the purchaser’s peril insofar as the judgment, the levy, and the deed are concerned; and when the deed conveys no title because the defendant in fi. fa. has no leviable interest in the property, the purchaser acquires no title. Milam v. Adams, 216 Ga. 440, 117 S.E.2d 343 (1960); May v. Macioce, 191 Ga. App. 491, 382 S.E.2d 198 (1989).

Purchaser must take such title as examination of proceedings will show that the purchaser can get and is bound to ascertain personally beforehand what title the purchaser will obtain by the sale. Kurfees v. Davis, 178 Ga. 429, 173 S.E. 157 (1934). Fraud as prerequisite to repudiation. - Purchaser cannot repudiate a bid when there is defective title or no title, unless there is fraud, and a purchaser at a judicial sale is bound to look to the judgment, the levy, and the deed. Brady v. Smotherman, 51 Ga. App. 480, 180 S.E. 862 (1935). Purchaser of land at a sheriff ’s sale under an execution is bound by the doctrine of caveat emptor; and when the levy under the execution is grossly excessive and the sale is declared void and the sheriff ’s deed canceled, the purchaser gets no title, but the purchaser cannot maintain an action against the sheriff for the purchase money paid if that officer has turned it over to the plaintiff in execution, and if there was no actual fraud or misrepresentation on the part of the sheriff.

Brady v. Smotherman, 51 Ga. App. 480, 180 S.E. 862 (1935). Purchaser seeking equitable relief from judicial sale would be obliged to show actual fraud or mistake, unaffected by the purchaser’s own negligence, of a character so gross as to amount to fraud. Kurfees v. Davis, 178 Ga. 429, 173 S.E. 157 (1934). Court of equity cannot relieve purchaser, if to do so would be to prejudicially affect rights of any one. Kurfees v. Davis, 178 Ga. 429, 173 S.E. 157 (1934). Cited in Worthy v. Johnson, 8 Ga. 236 (1850); McWhorter v. Beavers, 8 Ga. 300 (1850); Methvin v. Bexly, 18 Ga. 551 (1855); Dotterer v. Pike, 60 Ga. 29 (1878); Colbert v. Moore, 64 Ga. 502 (1880); Kenner v. Connally, 22 Ga. App. 94, 95 S.E. 308 (1918); Franklin Mtg. Co. v. McDuffie, 43 Ga. App. 604, 159 S.E. 599 (1931); Harris Orchard Co. v. Tharpe, 177 Ga. 547, 170 S.E. 811 (1933); Pan-American Life Ins. Co. v. Orr, 49 Ga. App. 257, 175 S.E. 32 (1934); Milam v. Adams, 216 Ga. 440, 117 S.E.2d 343 (1960).

RESEARCH REFERENCES Am. Jur. 2d. - 47 Am. Jur. 2d, Judicial Sales, §§ 71, 155 et seq. C.J.S. - 50A C.J.S., Judicial Sales, §§ 87, 88. ALR. - Effect of destruction of or damage to property after judicial or execution sale on rights and liability of successful bidder, 25 ALR 71. Remedy for fraud preventing redemption from judicial sale, 44 ALR 690. Doctrine of caveat emptor as applied to

purchaser at judicial or executor’s sale, 68 ALR 659. Rights and remedies of one purchasing at judicial or execution sale where there was misrepresentation or mistake as to acreage or location of boundaries of tract sold, 69 ALR2d 254. Right of purchaser at execution sale, upon failure of title, to reimbursement or restitution from judgment creditor, 33 ALR4th 1206.