The officer making a levy shall enter the same on the process by virtue of which levy is made and in the entry shall plainly describe the property levied on and the amount of the interest of defendant therein.
(Orig. Code 1863, § 3569; Code 1868, § 3592; Code 1873, § 3640; Code 1882, § 3640; Civil Code 1895, § 5421; Civil Code 1910, § 6026; Code 1933, § 39-103.)
Law reviews.- For note discussing procedures required to effect a levy of execution, see 12 Ga. L. Rev. 814 (1978).
JUDICIAL DECISIONS
Entry of levy is officer's declaration that the officer has seized property for the purpose of sale. Head v. Lee, 203 Ga. 191, 45 S.E.2d 666 (1947).
Entry of levy should be signed in order that it may be authenticated as the official act of the officer. Jones v. Easley, 53 Ga. 454 (1873).
When entry is not signed, officer may amend the entry by adding the officer's signature. Sharp v. Kennedy, 50 Ga. 208 (1873).
Entry of levy may be made and levying officer's name signed by scrivener, if done in the immediate presence and by the direction of the levying officer, and it will be upheld as the entry of the officer. Ellis v. Francis, 9 Ga. 325 (1851); Cox v. Montford, 66 Ga. 62 (1880); Weaver v. Wood, 103 Ga. 88, 29 S.E. 594 (1897); Vickers v. Hawkins, 128 Ga. 794, 58 S.E. 44 (1907); Cooney v. City of Atlanta, 136 Ga. 118, 70 S.E. 950 (1911).
When tax executions are levied by deputy sheriff, entry of levy need not be signed by the sheriff or by someone legally authorized to sign the sheriff's name for the sheriff. Durham v. Smith, 186 Ga. 565, 198 S.E. 734 (1938).
Interest intended to be seized and sold must be defined or specified in levy, and not set out generally as an interest, or as the interest of the defendant in the property. Bledsoe v. Willingham, 62 Ga. 550 (1879); Thornton v. Ferguson, 133 Ga. 825, 67 S.E. 97, 134 Am. St. R. 226 (1910).
Levy must describe land with precision necessary to inform purchaser of what the purchaser is buying and sufficient to enable the officer selling it to place the purchaser in possession; otherwise, it is void and a deed based thereon is likewise void. Head v. Lee, 203 Ga. 191, 45 S.E.2d 666 (1947); Elliott v. Leathers, 116 Ga. App. 842, 159 S.E.2d 167 (1967).
Interest of defendant must be plainly set forth in entry of levy. Harden v. Bell, 212 Ga. 711, 95 S.E.2d 375 (1956).
It is not sufficient that the entry recites that "the interest" or "all the interest" of the defendant in fieri facias is levied on, but it should disclose with reasonable certainty what that interest is. Harden v. Bell, 212 Ga. 711, 95 S.E.2d 375 (1956).
Description in entry of levy is sufficient when the description furnishes a key whereby the identity of the land may be made certain by extrinsic evidence. Head v. Lee, 203 Ga. 191, 45 S.E.2d 666 (1947); Elliott v. Leathers, 116 Ga. App. 842, 159 S.E.2d 167 (1967).
When entry of levy is so indefinite that land cannot be accurately identified, entry is void and cannot be cured by amendment. Ansley v. Wilson, 50 Ga. 418 (1873); Burson v. Shields, 160 Ga. 723, 129 S.E. 22 (1925).
Levy or a deed which fails to describe any particular land or to furnish any key to the confines of the land purporting to be levied on or to be conveyed is void. Elliott v. Leathers, 116 Ga. App. 842, 159 S.E.2d 167 (1967).
Misdescription of land in levy.
- If there is misdescription in the levy, the levy is not void provided the land can be identified notwithstanding the description. The error or misdescription may be treated as surplusage. Burson v. Shields, 160 Ga. 723, 129 S.E. 22 (1925).
Defect in levy description may be cured by amendment when the entry describes the land seized with such particularity that there can be no doubt about its identity, and the defect in the entry refers to other matters than the description of the property seized, the defect may be cured by amendment. Perkerson v. Overby, 59 Ga. 414 (1877); Williams v. Baynes, 84 Ga. 116, 10 S.E. 541 (1889); Manley v. McKenzie, 128 Ga. 347, 57 S.E. 705 (1907); Dominey v. De Lang, 130 Ga. 618, 61 S.E. 475 (1908).
Improper description cannot be cured in deed made by sheriff pursuant to sale under such levy. Burson v. Shields, 160 Ga. 723, 129 S.E. 22 (1925).
When a levy on land is void for lack of proper description, the defect cannot be cured by proper description of the land in the deed made by the sheriff in pursuance of the tax sale under the levy for the reason that the deed would not conform to entry of levy. Craddock-Terry Co. v. Lazarus, 180 Ga. 552, 179 S.E. 730 (1935).
When levy upon land is made under court order directing sale of specific property, levying officer has no discretion, but the officer's duty is to levy on the specific property to pay the judgment; nor would the officer be authorized in the seizure of any person's interest in the property except that of the defendant. Heaton v. Hayes, 188 Ga. 632, 4 S.E.2d 570 (1939).
Supreme Court cannot say as matter of law that a deed is void because based upon excessive levy, unless it appears upon the face of the deed that the levy was so grossly excessive as to be a fraud upon the law. Head v. Lee, 203 Ga. 191, 45 S.E.2d 666 (1947).
Levy upon larger estate authorizes sale of lesser estate actually owned. Floyd v. Braswell, 45 Ga. App. 726, 166 S.E. 65 (1932).
Return of levying officer is sufficient prima facie to establish who was in possession at time of levy, but such an entry is not sufficient to show that the claimant had never been in possession of the property under a previous conveyance. Glenn v. Tankersley, 187 Ga. 129, 200 S.E. 709 (1938), later appeal sub nom. Bussell v. Glenn, 197 Ga. 816, 30 S.E.2d 617 (1944).
Notice of levy no substitute for valid writ of execution.
- When no valid levy occurs because of a defect in the writ of execution, the actual notice provided by the notice of levy issued pursuant to O.C.G.A. § 48-3-9 cannot serve as a seizure of the property so as to cure the defect in the writ of execution. Powers v. CDSaxton Props., LLC, 285 Ga. 303, 676 S.E.2d 186 (2009).
Entry reciting that land is levied on "as property of defendant," when there is only one defendant, is sufficient and will be construed as an assertion that the defendant in fieri facias is the owner in fee simple; but if there be more than one defendant named in the fieri facias such an entry would be too indefinite, and should go further and disclose either that the land is levied on as the common property of all the defendants, or as the individual property of one or more of them. Clark v. C.T.H. Corp., 181 Ga. 710, 184 S.E. 592 (1936); Harden v. Bell, 212 Ga. 711, 95 S.E.2d 375 (1956).
Description of land lot and acreage not void.
- Levy and the description contained in a deed based thereon which describes the land as being a definite number of acres located in a certain corner of a land lot which is in the form of a square with its lines running north and south, east and west, is not void for uncertainty. Head v. Lee, 203 Ga. 191, 45 S.E.2d 666 (1947).
Execution levied upon "one-fifth undivided interest in" described tract of land was not void because of an insufficient description of the property levied upon in that the amount of the interest of the defendant in the property was not set forth as required by this section and the fact that the undivided remainder interest of the defendant might be subject to a life estate in another person would not prevent the sale of whatever lesser interest the defendant actually had in the property under the levy. Floyd v. Braswell, 45 Ga. App. 726, 166 S.E. 65 (1932).
Levy against property held by executrix failing to note representative capacity.
- Entry of levy by the officer upon an execution against specific property "only," based on a judgment of foreclosure of a security deed, rendered against the executrix of the estate of the grantor (since deceased), is not void on the ground that the levy states that the property was levied upon as the property of the named executrix, rather than that the property was levied in the executrix's representative capacity. Heaton v. Hayes, 188 Ga. 632, 4 S.E.2d 570 (1939).
Levy failing to specify buyer's and seller's respective interests in secured personalty.
- When the seller of personalty has a leviable interest in the property, notwithstanding it may be in the possession of the purchaser, and the creditor's right is subject to the purchaser's equity in the contract, if the property has been levied on under an execution against the seller, and the purchaser files a claim thereto, the levy cannot proceed and the property be subjected to sale thereunder when the amount due by the purchaser on the purchase money and the respective interests of the seller and the purchaser in the property do not appear on the entry of levy. D.A. Schulte, Inc. v. Varron, 181 Ga. 542, 182 S.E. 912, answer conformed to, 52 Ga. App. 683, 184 S.E. 356 (1935).
Execution against land in proceedings in rem.
- When the proceeding and execution is one against the land itself, and not against any one person or persons or their interest therein, and the naming of a person in the execution as the owner of the property is only for the purpose of identification and further description of the land itself, and not the interest or title levied upon, the officer would be under no duty to levy on the property as the property of the person named in the execution, or to specify the officer's interest in the property levied upon, and a recital in the entry of levy, which recital the officer was under no duty to make, that the property was levied on as the property of the person named in the execution, would not legally affect the extent of the levy or the extent of the title sold thereunder. Clarke v. Mayor of Millen, 187 Ga. 185, 200 S.E. 698 (1938).
Constructive levy.
- Property tax sale was not void because the evidence established that the sheriff had effectuated a levy on the property, pursuant to O.C.G.A. § 9-13-12, prior to issuing the required notices, advertisements, and sale of the property; a constructive levy of the property was made by tacking the Notice of Execution and Tax Levy issued by the sheriff onto the property itself and the tacked notice also was issued to the tenant in possession and to the owner at the address of record. Tharp v. Vesta Holdings I, LLC, 276 Ga. App. 901, 625 S.E.2d 46 (2005).
Tax sale invalid.
- As a county tax commissioner's fieri facias on a parcel of property was defective because no entry of levy was made thereon as required by O.C.G.A. § 9-13-12, and the notice of levy issued under O.C.G.A. § 48-3-9 was not a substitute for a properly-executed fieri facias, the commissioner's subsequent tax sale of the property was invalid. Powers v. CDSaxton Props., LLC, 285 Ga. 303, 676 S.E.2d 186 (2009).
Summary judgment properly denied.
- Special master did not err in finding that a fact question remained as to whether a proper levy of the property occurred in accordance with O.C.G.A. § 9-13-12 as deposition testimony from representatives of the sheriff's office raised significant questions as to whether required entries of the levy, including the necessary description of the property, were appropriately made on the writ of execution, or fiere facias, and in the sheriff's records; on the other hand, however, the buyer presented a tax sale deed that recited that the formalities required for a levy had been honored, thereby providing evidence that some seizure of the property had occurred. Davis v. Harpagon Co., LLC, 281 Ga. 250, 637 S.E.2d 1 (2006).
Cited in Wiley v. Martin, 163 Ga. 381, 136 S.E. 151 (1926); Speed Oil Co. v. Aldredge, 192 Ga. 285, 15 S.E.2d 214 (1941); Chastain v. Alford, 193 Ga. 551, 19 S.E.2d 721 (1942); Busey v. Milam, 95 Ga. App. 198, 97 S.E.2d 533 (1957); Davis v. Harpagon Co., LLC, 283 Ga. 539, 661 S.E.2d 545 (2008).
OPINIONS OF THE ATTORNEY GENERALOfficer making levy shall enter same on tax fieri facias and shall plainly describe property levied on; the officer making the levy can be a sheriff, or if there is a local Act making the tax collector an ex officio sheriff for the purpose of levy and sale under tax execution, it can be the tax collector. 1969 Op. Att'y Gen. No. 69-250.
RESEARCH REFERENCES
Am. Jur. 2d.
- 30 Am. Jur. 2d, Executions and Enforcement of Judgments, § 196.
C.J.S.- 33 C.J.S., Executions, § 90.