Collins v. Boring

| Ga. | Jul 8, 1895

Atkinson, Justice.

1. Ordinarily executions against a trust estate for taxes should be issued against a trustee in his representative capacity, and not in his capacity as an individual; and usually the mere addition “trustee” is descriptio personas only, and does not give to the person so described his representative character. But the property of trust estates, like all other property, is liable for taxes legally imposed upon it; and where the trustee, owning in her own right no separate property, remained in possession of the trust estate, and while she was thus in possession an execution issued against her, describing her ea nomine, but with the addition “trustee,” she having no property of her own liable for taxes, the presumption would be, after long lapse of time, that she made a return of the trust property, in which she described herself in accordance with the description of her given in the execution. If the trust estate were in fact liable for the taxes, the erroneous description of the person against whom the execution issued was amendable, and the progress of such an execution, until amended, could have been arrested by the defendant filing an affidavit of illegality.. That this execution was treated as a lieu upon the trust property, is clearly deducible from the fact that the trustee in her individual capacity owned no property, and there was none other against which the execution could have issued. The trustee, ho'wever, made no question as to the validity of the execution. The property was brought to sale, and the .trustee, under the sale thus made, yielded possession to the purchaser, and the right of this purchaser, so far as this record discloses, has never been called in question by any one holding or claiming in subordination to the right of the trustee. We think, therefore, there was sufficient evidence upon the trial of this issue to authorize the jury in finding that the tax execution under which the property was sold was for taxes which were a legal charge upon this estate; particularly, as the same for nearly twenty years has never been called in question by any one entitled in right of the trust estate.

2. The execution and deed made in pursuance of the sale thereunder were objected to, upon the ground that the levy was not sufficiently certain to identify the property sold. The levy entered upon the execution was in the following language: “Levied this ft. fa. on a lot and the improvements thereon, containing twenty-five acres, situated in the southeast portion of land lot No. 222 in the 17th district of originally Henry, now Fulton county, Georgia, adjoining the lands of James D. Collins and Atkinson, and known as the Burge property, as the property of Mrs. F. F. Burge, trustee, March 29th, 1876.” (Signed) “C. W. Wells, D. Sheriff.” We think this levy sufficiently definite to authorize a sale of the property therein described. Description must always be to a great extent a matter of degree. Absolute certainty in matter of description is difficult, if not impossible, of attainment. The property here was designated, first by lot number, then as a fractional portion of that lot, containing a given number of acres embraced within boundaries of contiguous landowners, and the final matter of description refers to it as the property belonging to a particular person. With such a description in a deed, a conveyance of premises would not be void. Whatever was ambiguous might be cured by parol evidence of the identity of the premises; and that these premises, from the description given, are capable of identification and location, does not admit of question.

3. The deed executed in pursuance of the sheriff’s sale made under the levy and ji.fa. which we have been discussing, was offered in evidence, and objection was made to it upon the ground that upon its face alterations appeared to have been made in the deed. The court overruled this objection, and admitted the deed in evidence, to which ruling the plaintiff excepted. The deed appeared on its face to have been duly executed, had been regularly admitted to record, and was offered as a registered deed. Under section 2712 of the code, registered deeds are admissible in evidence without further proof; and this rule of law rests upon the presumption that just as the deed was executed it was admitted to record. Prima facie then, alterations which appear in a registered deed, under the- section of the code which admits registered deeds without further proof, will be presumed to have been made by the parties at or before the time of the execution of such deed. If the plaintiff desires to raise an issue upon this point, he has only to file an affidavit that to the best of his knowledge and belief the deed as offered is a forgery, and the filing of this affidavit places upon the plaintiff the burden of showing affirmatively what the law in case of a registered deed presumes in his favor: that it was in fact executed and delivered in accordance with what purports to be the facts as stated therein.

4. Further objection was made to the introduction of the tax execution in question, upon the ground that in the face of the entry of the levy entered thereupon certain changes and alterations had been made. No traverse was offered to the truth of this entry, nor was it otherwise called in question than by objection to what appeared upon its face. This purported to be an official entry made by the sheriff in execution of the process committed to him. He was an officer authorized to execute the writ. Liberal presumptions are to be indulged in favor of the integrity of official returns. There is authority for the proposition, that such returns cannot be overcome except by the strongest evidence. Whatever purports to be stated in the face of them, must be accepted at least as prima facie true. Upon this presumption alone, the court was justified in overruling the objection offered, and in allowing the execution as evidence.

5, 6. It appears from the evidence in this case, that' the purchaser at the sheriff’s sale subsequently conveyed to the present defendant the premises in dispute, executing to her a deed on May 9th, 1877. Evidence was submitted, showing that under this deed the defendant went into the possession of the premises described therein and remained for a sufficient length of time to have given her a title by prescription. The character of her possession was such as would have authorized a finding in her favor upon the question of prescription. So that, whether we treat the original tax sale as a valid sale or not, the jury having found upon the various elements involved in the establishment of a prescriptive title in favor of the defendant, the deed itself, whether perfect in all respects or not, being good as color of title, the verdict should be upheld; particularly is this time, where there have been three consecutive findings in favor of the defendant, and the finding of the jury upon the evidence submitted has been approved by the presiding judge. Judgment affirmed.