33 Ga. App. 81 | Ga. Ct. App. | 1924
(After stating the foregoing facts.)
The sole question for decision is whether the taxes should be apportioned ratably against the proceeds of the sale under the common-law fi. fa., according to the values respectively of the property sold thereunder and of the other properties of the tax debtor upon which the bank had held liens.
The defendant in error insists that under the decision of the Supreme Court in Brooks v. Matledge, 100 Ga. 367 (28 S. E. 119), the question should be answered in the affirmative. We can not agree that the principle which controlled in that case is here applicable. In Askew v. Scottish American Mortgage Co., 114 Ga. 300 (40 S. E. 256), the Supreme Court said: “What was really
Certain property, though subject to liens or deeds to secure debt in favor of the bank, was in the possession of the taxpayer, and still to be considered his property, after the accrual of the liens for taxes. By the provisions of the Civil Code (1910), § 3333, liens for State and county taxes are declared superior to all other liens; taxes due the State being the first in rank and taxes due the county being the second. Such taxes are to be charged against the owner of the property. Civil Code (1910), § 1018. The last of the properties sold by the taxpayer, where all is sold, should bear the burden of the taxes previously due, the proceeds being sufficient. That in this case was the property sold in November, 1922, for $481, a sum in excess of the taxes. While this sale was made by the bank under power, it is yet to be regarded as a sale by Allen, the taxpayer, himself. Merchants National Bank v. McWilliams, supra; Askew v. Scottish American Mortgage Co., supra; Noles v. Few, 155 Ga. 471 (117 S. E. 374). The later sale of the lands under the common-law fi. fa. can not be so accounted, for the reason that Allen had long prior thereto sold his bond for title to the bank, and had no further interest or equity in this property. Though nominally against Allen, this was in reality a sale of the property of the bank, which it had acquired subject to the lien of this fi. fa.
The case is controlled, as were the Askew and McWilliams cases, by the principles set forth in the Civil Code, § 6029: “Where property is subject to a lien and part of it is sold by the debtor, the part remaining in him should be first applied to the payment
It may be that the bank is also barred from its claim of apportionment under the terms of section 6048 of the Civil Code, wherein it is provided: “If the plaintiff in execution, for a valuable consideration, releases property which is subject thereto, it is a satisfaction of such execution to the extent of the value of the property so released, so far as purchasers and creditors are concerned.” But the bank had not acquired the tax fi. fas. at the time of one of these releases, and it does not clearly appear that it had done so prior to the other release, and we rest our decision upon the principles of section 6039.
The court erred in adjudging that any part of the taxes should be paid out of the proceeds of the sale under the fi. fa. in favor of Walker’s executor, that not being the last sale by the tax debtor.
Judgment reversed.
