Kingsbery v. Love , 95 Ga. 543 ( 1895 )

Judgment reversed.

The special plea was as follows: On the day of and before tbe sale, the advertisement being ambiguous, defendant went to plaintiff and told him he desired to bid on the land and wanted to know exactly what was to be sold, because he did not want to buy land and then have to pay any more than his bid. The administrator informed him the land would be sold, and referred him to E. T. Dorsey, the attorney of the administrator, for information as to exactly what would be sold, who replied that in his judgment defendant ■would get the land free from lien. Said attorney referred him to M. A. Candler for further information, Candler being an attorney at law, and with Dorsey being interested in the claim held by Achey against the estate. Defendant was informed by Candler that the land would be sold and that defendant would, if he bought it, get the land, and the Achey claim or lien would be paid out of the proceeds of the sale. When the sale came on, defendant inquired of the auctioneer, while he was actually engaged in making the sale, what he was selling, who answered: “I am selling the land. I am offering you land with great big trees on it, and not a paper.” Defendant then said, “I bid for the land unincumbered” so much, and then continued to bid, Candler being the party who finally ran it up on defendant, until the sale culminated in a bid by defendant of $20,000 for the land unincumbered, at which price it was knocked off to him. Defendant tendered the money to the administrator, and was tendered in receipt therefor a simple transfer of the bond, the latter claiming that defendant must pay off the lien in addition thereto. Defendant replied that he did not bid for any such thing or purpose, and declined then to accept the offer. The conduct of the administrator and his advisers operated as a legal fraud upon him. lie was misled and surprised thereby, and therefore is not indebted to plaintiff’. He never bid for the bond or the land as affected thereby, and would not have given or offered $20,000 or any such sum for the land incumbered, or any qualified interest therein. From the announcements made at the sale and conversations with the parties before the sale, he thought he was buying the whole property free from liens; and if in fact he did not do so, he was honestly mistaken and did not make the contract as contended for by the plaintiff, and the minds of the parties never met in respect thereto. The negotiations between him and the administrator, before and at the time of the sale, were in reference to the claim of Achey alone, and as to whether the purchaser at the sale would have to pay off that claim, or whether the administrator would settle it ou't of the proceeds of the sale; and the administrator stated, in substance, that he could settle that claim out of the proceeds. When defendant tendered the $20,000 to plaintiff, he requested an administrator’s deed, and declined to pay only when the administrator stated that he would do no more than transfer the bond and would not pay the amount due Achey out of the proceeds of the sale.

Ellis & Gray, for plaintiff' in error. Dorsey, Brewster & Howell and J. A. Anderson, contra.