114 Ga. 886 | Ga. | 1902
This was an application for an injunction to restrain the defendants from cutting timber from land which the plaintiffs claimed to own. The plaintiffs claimed to derive title through a tax deed founded upon an execution for State and county taxes, and the judge held that the deed was void and refused the injunction. The only question to be determined in this case is whether this ruling of the judge was erroneous. The lots in controversy were wild lands, and on May 1, 1898, the tax-collector had issued executions for taxes against the “lots as wild and unreturned lands.” The lots were sold by the sheriff on August 2,1898, after levy and due advertisement, and deeds were delivered to the purchaser, which were “regular in every respect except they failed to recite that the sheriff,” before offering the lands for sale, “ offered to rent or hire” the same for the purpose of raising the requisite amount to pay the taxes. There was read at the hearing an affidavit of the sheriff which stated that “ no offer was made by him before the sale to lease, rent, or hire said lands in order to raise the taxes due thereon.” The code declares that, “When property is assessed for taxes which has not been returned by any one, as soon as assessed the tax-collector shall at once issue an execution against
It is hard to conceive of a lot of wild land being so situated that any sane individual would pay anything for rent of the same. If such were the case, however, under any circumstances, the instances would be so exceptional that it would not be presumed it was the intention of the General Assembly to continue in force a law requiring an effort to be made to rent such lands before offering them for sale for taxes, when there is nothing in the act relating to the subject of selling such lands for taxes which expressly continues such law in force, and the terms of the act positively provide for a sale, and inferentially for a sale only. The judge refused the injunction upon the sole ground that the tax deeds under which the plaintiffs claimed were “void because of failure to comply with the provision as to rent or hire by the officer before the sale.” While there were other questions involved in the case, the one just referred to is the only one passed on by the judge; and as we feel constrained to hold that the venerable and learned judge whose
While the question is not raised in the present record, we deem it proper to call attention to the fact that there may be some doubt as to whether an execution issued by the tax-collector for taxes on unreturned wild lands is valid. Under that portion of the Political Code, § 821, which is quoted above, it is made the duty of the “receiver of tax returns ” to issue executions against wild lands which have not been returned for taxes. The part of the section of the code referred to above is an exact copy of the portion of the act of 1881 above quoted, and the codifiers, although they had before them the act of 1882, as appears from the marginal note to the section, have retained the words “receiver of tax returns,” which appeared in the act of 1881, instead of inserting in lieu thereof the wurd “tax-collector,” as provided in the act of 1882. See Acts of 1882 — 3, p. 47. In the case of Leonard v. Pilkinton, 99 Ga. 738, the attention of the court was not called to the fact that the codifiers had codified the act of 1881 and omitted the amendment of_ 1882. In the case of Southern Pine Company v. Kirkland, 112 Ga. 217, Mr. Justice little calls attention to the fact that the act of 1881 was amended by the act of 1882, as well as that the code contained the provisions of the act of 1881, unaffected by the amendment of 1882, so far as it relates to the officer whose duty it is to issue the execution. We again call attention to this; but-as the' record contains no assignment of error which would authorize us to determine the question, we make no decision thereon.
Judgment reversed, with direction.