120 Ga. 115 | Ga. | 1904
The trustee Bourquin failed to pay the taxes. The land was bought at tax sale by Kaufman. Immediately after the expiration of the redemption year Kaufman conveyed to Bourquin in his individual capacity: The latter and his representative now insist that as Kaufman was an innocent purchaser, he acquired a valid title to the trust property at tax sale, and could convey as good a title to Bourquin as he could have made to any one else. A fiduciary is bound to exercise the diligence of a prudent man in protecting the property committed to his care. He is liable for negligence or bad faith in permitting its total destruction by a sheriff’s sale, on the same principle that he is responsible for its partial destruction by waste or mismanagement. Civil Code, §§3170, 3200. If the property is incumbered by a lien, he can not sit idly by and allow the estate to be sacrificed, but is bound to the exercise of diligence to prevent an improper foreclosure, or an improper or disadvantageous.sale. The trustee here could have advanced the taxes, and would have been entitled to a lien for his reimbursement. Or if, as claimed, he had no individual or trust funds which could have been applied to that purpose, and if in the exercise of proper efforts he had been unable to borrow or to make other arrangements to pay or carry the taxes (Printup v. Trammell, 25 Ga. 240; Thompson v. Thompson, 77 Ga. 699 (4); Harrison v. Mock, 16 Ala. 616; Fishbeck v. Gross, 112 Ill. 208 (3); King v. Cushman, 41 Ill. 31 (4); Freeman v. Tompkins, 1 Strobh. Eq. (S. C.) 53; Burr v. Mc
One who is under the obligation to pay taxes can not directly or indirectly purchase at a sale caused by his own default. Such attempted purchase will be treated as payment. Pol. Code, § 904. When, therefore, Bourquin individually took a deed to the trust property from Kaufman, he unintentionally corrected the wrong of which he had previously been guilty, and the original status was restored; and whether this deed is treated as a redemption before the expiration of the twelve months, or as an independent purchase after the redemption year, the title to the land wrongfully allowed to be sold for taxes was thereafter held by him under tire trust as it existed prior to his breach of duty. “It would be a gross fraud -in him to suffer the land to be sold for these very taxes he was bound to pay, lie by until the day of redemption was gone, buy in at the price of redemption the title of the purchaser, and then set up that title against that which he had undertaken to guard.” Coxe v. Walcott, 27 Pa. St. 159; Dubois v. Campau, 21 Mich. 370. Nor would the result be changed, by the fact that in addition to the bid and ten per cent, he paid Kaufman $30, the amount of other tax liens against the estate. In both cases he holds the redeemed property in trust for his son Polignac, but with a right to reimbursement for all sums expended in the protection of the property. If there was no collusion in the bidding or redemption, and if Kaufman was an innocent purchaser, this makes no difference. The principle that one without notice can convey to one with notice (Civil Code, § 3938) is subject to an exception where the transfer is back to him who was guilty of the actual or constructive fraud in first transferring, or in permit
Pending suit there was a second tax sale ; but we find it unnecessary to pass on the question as to whether, since the adoption of the Code of 1895, §.778, trust property or property belonging to Polignac Bourquin could lawfully be sold under an execution against Gugie Bourquin as an individual, if aided by parol evidence that the execution was intended to represent taxes on that' lot. Kile v. Fleming, 78 Ga. 5; McLendon v. Horton, 95 Ga. 60; Burns v. Lewis, 86 Ga. 599. Nor is it necessary to consider whether, in view of its recitals, it might be treated as an execution in rem ; nor to determine whether the sale was void because the levy was excessive. For whether the sale was valid or not, the tender by Polignac Bourquin of the bid and ten per cent, defeated whatever interest Guillemain Bourquin acquired by virtue of the tax sale. Where a creditor refuses to accept a proper tender, the claim is not extinguished, nor is the debtor harmed by the refusal. He still has his money. He may lend it or use it in business. If, however, he wishes to stop the running of interest, or to prevent the accrual of costs, he must keep the tender good. Civil Code, §3728. But where the creditor has collateral, mortgage, or other form of security upon the property of the debtor, the failure to accept a legal tender discharges the lien which was intended to secure payment. When it has accomplished its purpose it ought not longer to be effective against him who has done all required by the law or the contract to cancel the mortgage or to regain possession of the pledge. The debtor offers the money*for the
Here, therefore, when Polignac tendered to Guillemain the amount of the latter’s bid and ten per cent, added thereto, the plaintiff was entitled to possession of the land. The defeasible title of the purchaser was at an end, and, whatever might be his rights as to the amount of the bid and penalty, he could no longer rely on the sheriff’s deed as against him who offered to redeem and made the tender required by law. The two tax deeds having been nullified, in the one case by the conveyance from Kaufman to the trustee, and in the other by the offer of the plaintiff to pay the redemption money within the time allowed by law, the defendant was without title, the plaintiff had made out a perfect paper title, and the verdict in his favor was demanded by the evidence.
The verdict against the defendant for mesne profits shows on its face.that it included rent for the period that the land was in
have already been six trials of this case and there should be an end of litigation, we direct that the issue on the next trial be confined exclusively to a consideration of the question of mesne profits and the claim of set-off by the defendant.
Judgment Affirmed in part, and reversed in part, with direction.