Turner et al. v. Winn, sheriff.
Though an affidavit of illegality may not have been-sufficient in law to have arrested an execution levied on land, yet if not so manifestly without foundation as to lead to the conclusion that the sheriff receiving it was in contempt in not obeying the process, and it may be inferred that he acted in good faith in so doing and in returning it with the writ to the court, and there be no attempt to show that the plaintiff suffered any special damage or loss by by such action, it is not an abuse of discretion to discharge a rule against the officer for not making the money due on the execution.
November 25, 1889.
Bule. Sheriffs. Illegality. Officers. Before Judge Lumpkin. Oglethorpe superior court. April term, 1889.
At the October term, 1868, of Oglethorpe superior *762court, a judgment was rendered in favor of Glenn et al., executors, v. W. H. Paul, Richard Ward, and Thomas R. Tiller, administrator of M. W. Woods, deceased. Execution issued November 12, 1868, and on February 1, 1873, was levied on land as the property of M. W. Woods, deceased, and written notice given to Tiller, administrator. This judgment and execution were transferred by the plaintiffs therein to one Johnson; by him, February 20, 1873, to Thos. R. Tiller, as administrator of M. W. Woods; and by Tiller, December 11, 1875, to R. H. & R. F. Turner, “for value received and without recourse on said T. R. Tiller as aforesaid. ” On March 17, 1882, the judgment and execution having become dormant, a scire facias to revive them was issued at the instance of R. H. & R. F. Turner, and was served upon W. H. Paul and Richard Ward. No objection being offered, judgment of revival was rendered October 16, 1882, and execution issued on the 31st of that month against W. H. Paul and Richard Ward in favor of Glenn, executor, for the use of R. H. & R. F. Turner. This was levied, February 28, 1889, by J. D. Winn, deputy-sheriff, on land as the property of Richard Ward, and the same was advertised to be sold on the first Tuesday in April succeeding. On April 2, Richard Ward tendered to the deputy-sheriff an affidavit of illegality on the following grounds:
(1) Deponent was only security on the original debt upon which said judgment was rendered, for the principal debtor, W. H. Paul, and his co-surety was M. W. Woods ; and previously to the rendering of the original judgment, Woods died and Thos. R. Tiller became his administrator, and the original judgment was rendered against Paul, deponent, and Tiller as the administrator of said Woods.
(2) Plaintiffs allowed Tiller to fully administer the estate of Woods and obtain letters of dismission, al*763though the estate was sufficient to pay said debt; and Tiller, as administrator, not having pleaded any want of assets, was individually liable as co-surety with deponent and amply solvent and able to pay his share of the debt.
(3) "When scire facias was issued to revive the judgment, which plaintiffs negligently allowed to become dormant, Tiller was not made a party thereto either as administrator or individually, but was, without the knowledge or consent of deponent, released from any liability as surety or otherwise on the judgment, and no j udgment upon the scire facias was taken against him; and the judgment thereby became and is barfed by the statute of limitations against Tiller as administrator and individually.
(4) “By reason of the above acts and conduct on the part of the plaintiffs, the co-surety on said debt and judgment of this deponent has been released, and thereby plaintiffs have freed and released this deponent from any liability on said debt and judgment.”
This affidavit of illegality was by the deputy-sheriff returned to the superior court, where it was dismissed as insufficient in law. On April 15, 1889, upon petition of R. H. & R. F. Turner, a rule nisi was issued against the levying officer to show cause why he should not pay over to them the amount due upon the execution, lie answered that he never knew; of any property of defendants, Paul or Ward, subject to levy and sale, until plaintiff’s attorney, W. G. Johnson, pointed out the land levied on, and as soon as this was done he at once levied the execution upon the same and advertised it-as provided by law ; that when about to sell, Ward served him with the affidavit of illegality, whereupon he suspended sale and returned the affidavit of illegality to the court to be tried and disposed of, which he believed to be his legal duty; that he believed the affidavit *764made an issue of fact, which, if sustained by proof, was a valid legal defence, and he had no-right to dispose of it otherwise than as he did; and that he acted in entire good faith and upon the advice of Hamilton Mc-Whorter, a disinterested member of the bar. He further answered that, before the levy was made, the attorney of the plaintiffs, W. G. Johnson, often instructed him not to levy the execution, as there were older ones against Ward that would take the money.
On the hearing upon the rule and untraversed answer, it was ordered that the rule be dismissed ; whereupon the plaintiffs tendered their bill of exceptions.
W. G. Johnson, by brief, for plaintiffs.
J. T. Olive, by Harrison & Peeples, for defendant.