Weekes & Candler, for defendant.Phillips, Johnson & Williams, for plaintiff.

1. The first count of the petition set out a cause of action for the recovery of personal property sold to the defendant pursuant to an excessive levy of a distress warrant, which the defendant caused to be issued against the plaintiff's transferor, and it was error to sustain the general demurrer to this count of the petition.

2. The second count of the petition set out a cause of action for the recovery of personal property which the defendant took possession of without any right to do so, and which was not levied upon or sold as was the property described in the first count, and it wits error to sustain the general demurrer to count two of the petition.

Joel T. Henry brought an action of trover against S. B. Slack Sr., and made substantially the following allegations in count one of his petition: On November 28, 1949, the defendant caused a distress warrant to be issued against Henry & Hutchinson Inc. for $2500, and a copy thereof was attached and made a part of this count. On December 2, 1949, C. NV. Austin, a lawful constable of DeKalb County, levied said distress warrant upon certain described personal property found in the possession of Henry & Hutchinson Inc., and located on premises known as 1311 and 1313 East Ponce de Leon Avenue in the City of Decatur, which premises were in possession of Henry & Hutchinson Inc. as the tenant of the defendant. The Sheriff of DeKalb County advertised the property levied upon by the constable and sold it before the courthouse door of said county at public outcry on the first Tuesday in January, 1950. The property levied upon, being cumbersome and expensive to move, was not brought before the courthouse door on the day of said sale. The property consisted of numerous articles of varying values and was capable of division. The levy of said distress warrant in the sum of $2500 upon the described property, which was of the fair market value of $59,891.43, was grossly excessive and void, as was the sale based on said levy, and no title has passed to the defendant by reason of his purchase of the property at the sheriff's sale, and the defendant has no other claim of title to the property. On November 27, 1950, Henry & Hutchinson Inc. caused a personal demand to be made on the defendant for the return of the property to it, which was refused. Previously to the filing of this suit, Henry & Hutchinson Inc., for a valuable consideration, transferred and assigned its title to all of said property to the plaintiff, together with its right of action against the defendant for the conversion of the property. The plaintiff claims title to and right of possession of all of the property described, of the value of $59,891.43, and the defendant refuses to deliver said property to the plaintiff or to pay him the value thereof. The defendant has sold most or all of the property.

In the second count of the petition, the following allegations, in substance, were made: On November 28, 1949, the defendant caused a distress warrant to be issued against Henry & Hutchinson Inc. for $2500, a copy of which was attached to this count. On December 2, 1949, C. W. Austin, a constable, levied said distress warrant upon certain personal property found in the possession of said corporation, all of which property was located upon certain premises in said county known as 1311 and 1313 East Ponce de Leon Avenue in the City of Decatur, which were in the possession of said corporation as the tenant of the defendant. In addition to the property levied upon by said constable on December 2, 1949, there were at the time of the levy, in the buildings on said premises, other described articles of personalty belonging to and owned by said corporation, and these articles were listed with a value alleged after each item. At the time of the levy, the constable did not then or thereafter remove the property levied upon or any other property from the premises, but when he made the levy, he obtained from the employees of the corporation the keys to the two buildings on the premises containing the said property upon which he had levied said distress warrant, and also containing the personal property belonging to the corporation as set out in this count, and he ejected said employees from the buildings and locked the buildings and left, taking the keys with him. After the levy, the defendant entered and took possession of the premises and the buildings thereon in the absence of the officers of the corporation, and the defendant then caused all of the personal property belonging to the corporation and located in one of said buildings to be moved out and placed with the property of the corporation in the other building. All of the property owned by the corporation on said premises was then contained in the one building, and consisted of the property levied upon under the distress warrant, and the property not levied upon as described in this second count. The property levied upon was cumbersome and expensive to move, and was not brought to the courthouse door on the day of its sale, but wad sold before the courthouse door on the first Tuesday in January, 1950, at which sale the defendant purchased the property, paying therefor $1025. When the sale was made, all of the property levied upon under the distress warrant, with all of the property belonging to the corporation but not levied upon as herein described, was located in one building on the premIses. When the defendant took possession of the property levied upon, which he had purchased at the sheriff's sale, he remained in possession of the property he had taken when he entered the premises and moved the property belonging to the corporation, including the property not levied upon. The act of the defendant in taking possession of the property not levied upon or sold at the sheriff's sale, without the consent and against the will of the owner, was wrongful, as the defendant had no claim of title or right of possession. On November 27, 1950, the corporation demanded the return of said property to it, which was refused by the defendant. Previ-

ously to the filing of this suit, the corporation, for a valuable consideration, transferred and assigned its title to all of the property described in the second count to the plaintiff, together with its right of action against the defendant for said conversion. The defendant refuses to deliver said property to the plaintiff or to pay him the value thereof, and the plaintiff claims the title to and right of possession of all of the property described in count two, of the value of $27,414.37. The defendant has sold most or all of said property.

The defendant filed general demurrers to each count of the petition, on the ground that each count failed to set forth a cause of action in law or in equity against the defendant. The trial court sustained the general demurrers to both counts of the petition, and the plaintiff excepted to that judgment.

1. In the first count of the petition, the plaintiff alleged that personal property of the value of $59,891.43 was levied upon under a distress warrant for $2500, which the defendant caused to be issued against the plaintiff's transferor, Henry & Hutchinson Inc. The property was alleged to have consisted of numerous articles as listed, the value of each article being alleged. It appears that the property was capable of division, and that the value of a small number of the articles listed was greater than the amount of the distress warrant. The property was not brought before the courthouse door, as it was cumbersome and expensive to move, and it was purchased at the sale by the defendant, who had caused the distress warrant to be issued against the plaintiff's transferor.

A judicial sale under an excessive levy is void and passes no title. Forbes v. Hall, 102 Ga. 47 (28 S. E. 915); Walker v. Maxwell, 203 Ga. 393 (46 S. E. 2d, 923). A purchaser at such a sale is bound to take notice of an excessive levy. Morris v. Davis, 75 Ga. 169 (2). The refusal or failure of the defendant in fi. fa. (here, Henry & Hutchinson Inc., the plaintiff's transferor) to exercise the privilege, given by Code 39-116, of pointing out the property to be levied upon is immaterial in a suit questioning the validity of a levy on the ground of excessiveness. Payne v. Daniel, 194 Ga. 549, 550 (22 S E. 2d, 47). The alleged facts show that the property levied upon was capable of division and was worth almost twenty-four times the amount of the distress warrant. This was sufficient to raise a question for a jury as to whether the levy was excessive so as to pass no title to the property to the defendant by virtue of the sale pursuant to such excessive levy.

It is further contended by the defendant that no tender of the amount paid by the defendant for the property is shown by the petition. The present suit is not one which seeks relief in equity, where tender of the price paid at the void sale, used to extinguish valid liens against the defendant in fi. fa., may be required ( Clark v. C. T. H. Corp., 181 Ga. 710 (11), 184 S. E. 592; but see Forbes v. Hall, 102 Ga. 47, 49, supra); but it is an action at law, and therefore the purchaser's rights in regard to the amount paid on the sale pursuant to the alleged void levy must be asserted by the defendant purchaser, and the plaintiff need not anticipate or negative in his petition such rights of the defendant, if any.

It is also contended by the defendant that the plaintiff and the plaintiff's transferor have waived their rights to the property sued for by acquiescing in the sale, without objecting to it, filing an affidavit of illegality to it, or seeking to enjoin it. However, it does not appear that the transferor's agents or the plaintiff were present at the sale, so as to become bound thereby under Code 39-1315. "It is settled law of this State that an affidavit of illegality is not a remedy for an excessive levy." Pinkston v. Harrell, 106 Ga. 102 (2) (31 S. E. 808, 71 Am. St. R. 242); Code, 39-1004. Also, where equitable relief was not first sought against an excessive levy, such a levy and sale have been declared void in a claim case ( Stowe v. Birmingham Trust &c. Co., 161 Ga. 403, 131 S. E. 44), and in an action for damages in trespass ( Williams v. Aycock, 52 Ga. App. 386, 183 S. E. 628; s. c., transferred to this court, 180 Ga. 570, 179 S. E. 770). As stated in McNair v. Maxwell Brothers, 63 Ga. App. 539, 540 (11 S. E. 2d, 715), which was a proceeding in a municipal court to set aside a levy on goods not embraced in the contract foreclosed, "The only use which could have been made of an order granting the relief sought would have been its use as authority in another appropriate proceeding for recovery of the property. These questions can be determined in the one action." The present case is a proceeding for the recovery of personal property sold under an excessive levy; and, as it does not appear that the plaintiff or the plaintiff's transferor waived their rights to the property by acquiescing in the sale, the first count set out a cause of action, and the court erred in sustaining the demurrer thereto.

2. In the second count of the petition, the same levy and sale is set out as in the first count, but it is further alleged that there were two buildings on the premises rented by the plaintiff's transferor, and that all of the property belonging to the transfer or corporation was contained in the two buildings. It is alleged that the constable levied on the property contained in one of the buildings; that, after the levy was made, the defendant moved the property not levied upon into the building containing the property which had been levied upon; and that the defendant, after purchasing the property levied upon for $1025, took possession of all of the tenant corporation's property, including that not levied upon, of the value of $27,414.37.

The second count seeks to recover property which the defendant took possession of without any right to do so, and which was not even levied upon or sold by the officer under the distress warrant; and this count plainly sets out a cause of action in trover for the conversion of such property by the defendant. The court erred in sustaining the general demurrer to this count of the petition.

Judgment reversed. Felton and Worrill, JJ., concur.