9 Ga. App. 662 | Ga. Ct. App. | 1911
(After stating the foregoing facts.)
It is admitted by the plaintiff in error that the tax-collector of Laurens county had no authority, under the law, to transfer the tax fi. fa. in favor of the State and county to Mrs. M. J. Adams, transferee, and that his attempt to transfer it was void and of no legal effect, as he was not at that time the collecting officer of the county, and, the State and county taxes for that 'year having gone into the form of an execution, it became the duty of the sheriff to collect the taxes, and it was the sheriff’s duty to transfer the fi. fa. upon payment of the amount by Mrs. Adams. Civil Code (1910), § 1145. It is insisted, however, that the payment by Mrs. Adams to the tax-collector was not a settlement of the taxes due the State and county by the defendant in fi. fa. This did not relieve the sheriff from the duty of collecting the taxes due on that fi. fa., and, as the attempted transfer of the execution by the tax-collector was void, the lien of the fi. fa. still remains in the county. See Hill v. Georgia State Building and Loan Association, 120 Ga. 472 (47 S. E. 927), in which case the Supreme Court holds that the execution issued by the tax-collector for
It is insisted, in the second place, that the lien of the State and county under this fi. fa. was not divested by the payment of $208.34 principal thereon, because there was shown to be still due on the fi. fa. interest and costs. See Wilson v. Herrington, 86 Ga. 777 (13 S. E. 129), in which it was held that, notwithstanding the transfer of the tax execution, the sheriff was entitled to proceed to enforce collection, for the reason that there remained due upon it $1 for costs, and, as long as there was anything still due on the execution, any attempted transfer of it, even by the sheriff, was not legally effective to divest the lien of the fi. fa. in favor of the State and county for the taxes. We think the contention of learned counsel on both of these points is sound, and that, for both of the reasons given in the decisions cited, the title to this execution remained in the County of Laurens, and it had a prior lien on the property of the defendant for the amount still due on the fi. fa., to wit, interest and costs, and was entitled to be paid this amount before payment of the other executions against the defendant. Powell on Actions for Land, § 238. Judgment reversed.