Boyd v. Wilson

86 Ga. 379 | Ga. | 1890

Bleckley, Chief Justice.

After a previous writ of error in this case was disposed of (Wilson v. Boyd, 84 Ga. 84, 10 S. E. Rep. 499), the case was tried again in the courifbelow and resulted in a nonsuit, to the granting of which Boyd, the plaintiff, excepted.

1. The first question now to be considered is whether the levy of the tax fi. fa. upon the property in controversy is sufficiently certain and definite. The deed made by the sheriff to Wilson, the purchaser at the tax sale, described the property as “all that tract or parcel of land situate, lying and being in the twelfth district and first section of Lumpkin county, and known as the undivided one fourth of number nine hundred and thirty-one, containing in the whole lot forty acres, more or less,” whereas the levy and sheriff’s advertisement both described it thus : “ J of lot No. 931, in the 12th Hist, and 1st section of Lumpkin County, Georgia.” The point made is that the description in the levy and advertisement does not sufficiently indicate that one fourth of the lot undivided was seized and advertised. We think the description signified this and could signify nothing else. It did not specify or indicate any particular fourth of the lot, and if it would apply as well to one fourth as another it could not have been intended to point out or designate any particular fourth. There is nothing, therefore, for it to signify but some part of the lot in an undivided state, and that part is definitely indicated as one fourth, neither more nor less. In Coke upon Littleton, vol. 2, 190 (b), it is said: “Also, if a man seised of certaine lands infeoffe another of the moitie of the same land without any speech of assignment or limitation of the same moity in severaltie at the time of the feofiment, then the fefiee and the fefior shall hold their parts of the land in common. And the like law is, if the feofiment be made of a third 'part or a fourth part, &c.” In Adams v. Frothingham, 3 Mass. 352, it was held that a conveyance of a moiety of a piece of land in quantity and quality creates an estate in common. But it would seem from the language of Littleton quoted in the above passage that the words quantity and quality in this description were superfluous. And see Lick v. O’Donnell, 3 Cal. 59, cited in McAfee v. Arline, 83 Ga. 645. In Keaton v. Forrester, 63 Ga. 206, the decision was put by this court, not upon the insufficiency of the levy, but upon the failure of the evidence to establish title or possession in the defendant in fi.fa. so as to change the onus. ■

Ve think what we have held above is correct, but suppose it to be incorrect as a general rule of law, and so it would be perhaps tested by the case of Ronkendorff v. Taylor, 4 Peters, 348, yet under the special facts of this particular case we think neither Parker nor Boyd could complain as against Wilson of any ambiguity in the levy and advertisement. Parker was the tax debtor, and the property was levied upon, advertised and sold as he pointed it out to the levying officer. Boyd was present at the sale and understood that the same undivided fourth of the lot which he had purchased at a previous judicial sale was being again sold. He gave notice of his prior purchase, but made no objection to the terms of the levy or advertisement under which the second sale was proceeding. Ilis failure to do so indicates that he then construed the levy and advertisement as we do now; and no doubt Wilson, the bidder and purchaser at the tax sale, understood, as Boyd did, that the property being sold was the same which Boyd had previously purchased. This matter of ambiguous description seems to have been an afterthought. It was not even suggested in this, case until after the first trial. On the contrary, the theory of the plaintiff was that the interest of Barker sold for taxes was the same interest which Boyd had previously bought, namely an undivided fourth of the lot.

2. The next question is as to whether the tender to redeem from the tax sale was within time, it having been made after the expiration of twelve months from the time of the sale but within twelve months after the sheriff’s deed to the purchaser was recorded. The code settles this question in section 898, which reads as follows : “ Whenever any land is sold by virtue of a tax execution issued under this code, the owner thereof, or any administrator, executor, or guardian, or other trustee of the defendant in execution, shall have the privilege of redeeming .said land thus sold within one •year by paying the purchaser the amount paid by said purchaser for said land, with ten per cent, premium thereon from the date of the purchase to the time of payment.” Certainly there is no hint or intimation that the time is to bé computed from the recording of the deed. Manifestly the time -of the sale is the point from which the limitation runs.

3. The fraud set up in the amended petition was not proved so as to affect the purchaser at the tax sale. He had no part or lot in it. So far as he was concerned the sale was legal; and he made his purchase fairly and openly. The object of the hill is to set aside and annul his title. The facts of the case, as they appear in the record, do not furnish any valid ground for so doing. "We have already ruled that although he paid but a small price, yet, if he purchased fairly at a legal sale, he was entitled to take the benefit of his purchase. We see nothing in this seqond appearance of the case before-us to warrant a court, or a coui’t and jury, in branding, this purchase as fraudulent or otherwise invalid. Tax titles are protected by the code equally' with those de- - pending on sales made under judgments of the superior' court. Code, §884. The pointing out of property to be levied upon under tax executions is governed by section 891, and not by section 3641, of the code.

There is no error in any of the assignments contained in the bill of exceptions,- nor in the judgment of nonsuit.

Judgment affirmed.

On January 17, 1891, before the above judgment was made the judgment of the superior court, Boyd petitioned for a rehearing in the Supreme Court, on the ground that the first specific assignment of error in his bill of exceptions was not decided by that court, and that the same, together with the facts connected therewith, must have been overlooked, else the exception would have been sustained. This exception was, that the superior court erred in sustaining the levy of the taxfi.fa. when it appeared, both by the levy itself and by the other evidence, that Parker pointed out said property when he was not in possession of it, and 'when it further appeared that there was amply sufficient other property in the possession of Parker to have made the-money due on the tax ji. fa. The petition invoked the application of section 3641 of the code.

Per Curiam.

Petition for rehearing denied, this court having already decided in the same case that section 891 of the code applies to pointing out property under tax executions. See 84 Ga. p. 36. Section 3641 of the code applies, not to tax executions, but to executions founded on judgments.