2021 Georgia Code
Title 9 - Civil Practice
Chapter 13 - Executions and Judicial Sales
Article 7 - Judicial Sales
Part 2 - Conduct and Effect
§ 9-13-161. Where and When Sales Under Execution Held; Change of Place of Public Sales by Court Order

1. Unless otherwise provided, sales of property taken under execution shall be made by the sheriffs or coroners only at the courthouse of the county where the levy was made on the first Tuesday in each month, between the hours of 10:00 A.M. and 4:00 P.M., and at public outcry; provided, however, that, should the first Tuesday of the month fall on New Year's Day or Independence Day, such sales shall take place on the immediately following Wednesday.A change in the time of such sales from the first Tuesday of the month to the first Wednesday of the month as provided in this subsection shall also apply to all public sales within the county required to be conducted at the time of the sheriff's sales.
2. In all cases where any sheriff, coroner, or other levying officer shall levy any execution or other legal process upon any corn, lumber, timber of any kind, bricks, machinery, or other articles difficult and expensive to transport, the officer may sell the property without carrying and exposing the same at the courthouse door on the day of sale, but the levying officer shall give a full description of the property and the place where it is located in the advertisement of the sale.
3. By general order of the presiding judge of the superior court of the county, published in the official newspaper of the county and entered on the minutes of the court, all sales of property under execution within a county may be held at a place other than at the courthouse when, in the opinion of the judge, the holding of such sales before the courthouse door would create an undue traffic hazard or unnecessarily endanger the person or property of persons using the public streets. However, no such property shall be sold at a place different from that shown in the advertisement of the sale. Any change in the place of such sales within any county, as provided in this Code section, shall also apply to all public sales within the county required to be conducted in the manner of sheriff's sales.

(Laws 1799, Cobb's 1851 Digest, p. 509; Laws 1821, Cobb's 1851 Digest, p. 511; Code 1863, § 3575; Code 1868, § 3598; Ga. L. 1871-72, p. 49, § 1; Code 1873, § 3646; Code 1882, § 3646; Civil Code 1895, § 5455; Civil Code 1910, § 6060; Code 1933, § 39-1201; Ga. L. 1956, p. 701, § 1; Ga. L. 1990, p. 1731, § 1; Ga. L. 1993, p. 91, § 9.)

- For article, "Buying Distressed Commercial Real Estate: What are the Alternatives?," see 16 (No. 4) Ga. St. B.J. 18 (2010).

This section is constitutional, and a foreclosure pursuant to the statute does not violate procedural due process rights. National Community Bldrs., Inc. v. Citizens & S. Nat'l Bank, 232 Ga. 594, 207 S.E.2d 510 (1974).

Ordinarily, judicial sales are made at the courthouse and are for cash. Jones, Drumright & Co. v. Thacker & Co., 61 Ga. 329 (1878).

Sale not conducted at courthouse must be conducted at place designated in court order and advertisement since otherwise it would be easy to conceal the true place of sale and defraud persons seeking to bid. Warren Co. v. Little River Farms, Inc., 125 Ga. App. 332, 187 S.E.2d 568 (1972).

Beginning sale shortly before prescribed hour will not invalidate sale. Gower v. New England Mtg. Sec. Co., 152 Ga. 822, 111 S.E. 422 (1922).

Proviso in subsection (b) of this section was made for benefit of officers, and not a person who has contracted to deliver the property at the courthouse. King v. Castlen, 91 Ga. 488, 18 S.E. 313 (1893); Scruggs v. Bennett, 34 Ga. App. 131, 128 S.E. 703 (1925).

Officer must not lose control of property. O'Pry v. Kennedy, 86 Ga. 662, 12 S.E. 940 (1891); Johns v. Robinson, 119 Ga. 59, 45 S.E. 727 (1903).

As to machinery or other articles difficult to transport, there need be no carrying away in making levy. Champion Box Co. v. Manatee Crate Co., 75 F.2d 340 (5th Cir. 1935).

- Sale at a place other than at the courthouse, and other than that designated in the judicial order and announced in the notice and advertisements, is such an irregularity as renders the sale voidable at the option of one who was thereby deprived of a bid. Warren Co. v. Little River Farms, Inc., 125 Ga. App. 332, 187 S.E.2d 568 (1972).

In absence of valid sale, execution debtor retains title to the property. Cargle v. Knox, 143 Ga. 597, 85 S.E. 764 (1915).

Sheriff in making sale is agent of and acts for defendant in fieri facias and the proceeds of a sheriff's sale belong to the defendant in fieri facias. Falls v. Fickling, 621 F.2d 1362 (5th Cir. 1980).

- Sale of property in this state under the power of sale contained in a deed to secure debt is not void because the sale is had on a legal holiday. Miller Grading Contractors v. Georgia Fed. Sav. & Loan Ass'n, 247 Ga. 730, 279 S.E.2d 442 (1981).

Mortgagee may purchase mortgaged property at sale by the mortgagee under a power of sale in the mortgage, if by the terms of the mortgage the mortgagee is expressly authorized to do so. Miller Grading Contractors v. Georgia Fed. Sav. & Loan Ass'n, 247 Ga. 730, 279 S.E.2d 442 (1981).

- In the absence of a specific provision to that effect, the holder of a mortgage or trust deed with power of sale is not required to give notice of the exercise of the power to a subsequent purchaser or encumbrancer; and the validity of the sale is not affected by the fact that such notice is not given. Miller Grading Contractors v. Georgia Fed. Sav. & Loan Ass'n, 247 Ga. 730, 279 S.E.2d 442 (1981).

Upon the failure of a purchaser to comply with a high bid, the property sold at public auction may not be conveyed to the next highest bidder without complying with the terms of O.C.G.A. §§ 9-13-161 and44-14-162. Little v. Fleet Fin., 224 Ga. App. 498, 481 S.E.2d 552 (1997).

Cited in Mathews v. Starr, 68 Ga. 521 (1882); Williams v. Moore & Watkins, 68 Ga. 585 (1882); Garrett v. Crawford, 128 Ga. 519, 57 S.E. 792 (1907); County of DeKalb v. City of Atlanta, 132 Ga. 727, 65 S.E. 72 (1909); Carrington v. Citizens Bank, 140 Ga. 798, 80 S.E. 12 (1913); Bush v. Growers' Fin. Corp., 176 Ga. 99, 167 S.E. 105 (1932); Zugar v. Scarbrough, 186 Ga. 310, 197 S.E. 854 (1938); Citizens Bank v. Lamar County, 187 Ga. 123, 200 S.E. 257 (1938); Gooch v. Citizens & S. Nat'l Bank, 196 Ga. 322, 26 S.E.2d 727 (1943); Sellers v. Johnson, 207 Ga. 644, 63 S.E.2d 904 (1951); Copeland v. Beckham, 87 Ga. App. 34, 73 S.E.2d 34 (1952); Small Equip. Co. v. Walker, 126 Ga. App. 827, 192 S.E.2d 167 (1972); Law v. USDA, 366 F. Supp. 1233 (N.D. Ga. 1973); Roberts v. Cameron-Brown Co., 410 F. Supp. 988 (S.D. Ga. 1975); Wilson v. Citizens Bank, 143 Ga. App. 402, 238 S.E.2d 754 (1977); Sanders v. State, 151 Ga. App. 590, 260 S.E.2d 504 (1979); Geibank Indus. Bank v. Martin, 97 Bankr. 1013 (Bankr. N.D. Ga. 1989).

RESEARCH REFERENCES

Am. Jur. 2d.

- 47 Am. Jur. 2d, Judicial Sales, §§ 37, 39, 40, 41.

- 50A C.J.S., Judicial Sales, § 30 et seq.

- Effect of receipt of advance bid before confirmation upon the confirmation of judicial sale, 11 A.L.R. 399; 152 A.L.R. 530.

Judicial, execution, or tax sale on election day, holiday, or Sunday, 58 A.L.R. 1273.

Presence of chattels at place of sale as a condition of a sale by "public auction," required by statute or ordinance, or of a judicial or execution sale, 69 A.L.R. 1194.

When "sale" deemed to have taken place for purposes of statute of limitations which fixes commencement of period at time of foreclosure sale or other judicial sale, 101 A.L.R. 1348.

Construction, application, and effect of statutory provision requiring seizure and possession of property before sale for delinquent taxes, 105 A.L.R. 635.

Validity of judicial, execution, tax, or other public sale as affected by the particular point in courthouse or other place identified by notice, or designated by statute or by mortgage or trust deed, at which the sale was made, or by indefiniteness of notice as regards that point, 120 A.L.R. 660.