8 Ga. 479 | Ga. | 1850
By the Court.
delivering the opinion.
However sufficient these principles may be to sustain the tax lien, we are not left to them alone. In our judgement, the laws of the State give to assessed taxes a lien which overrides every other security or incumbrance. By the 14th section of the Act of 1804, which is still of force, it is declared, that “ the taxes imposed by this Act shall be preferred to all securities and incumbrances whatever.” Prince, 847. This section creates a lien. It is argued that it only gives a preference or creates a grade of debt, in contemplation of a contest with other securities and incumbrances. Our opinion is, that it creates a general lien, which attaches at the time when the property is liable by law to taxation, upon all the property of the citizen. It is true that the phraseology of the Act might have been more plainly declaratory of a lien. But what is its effect ? A legal preference, that is priority, is given to the taxes, not only over all incumbrances whatever — such as mortgages and judgements — but also over all securities — securities by title, as well as other securities. A deed, therefore, upon private sale, will not defeat the preference. It inhibits a sale to the exclusion of the taxes. And it can only defeat the security of a deed, upon the idea of a lien on the property. If a title by deed, upon private sale, will not defeat the tax lien, a title by deed upon a judicial sale will not, a fortiori; for, the lien of the judgement, under which the purchaser at the judicial sale gets his title, is unquestionably postponed by the Act. There is no particular form of words necessary to create a lien. The plain import of this Act is a legal preference for satisfaction out of the property of the person taxed, over every security and every incumbrance, and that is alien. The Legislature, no doubt, intended simply to declare the great fundamental principle, that the property of the citizen is pledged to the exclusion of all private contracts — to the support of the government. That principle elucidates the enactment. If the, lien exists without a legislative declaration — if it be an elementary principle of government, re
It is argued that the taxes are not a lien, from certain provisions of the tax law — such as that which declares all sales, made to prevent their payment, void — that which makes them first to be paid, in case of the death of the debtor, and charges the administrator, personally — and that which charges the mortgagee with the tax due upon the mortgaged property. These provisions of law do not set aside the lien created by the 14th section)
In the argument of this cause, the defendant in error relied upon the decision of the Supreme Court of the United States in Conrad vs. The Atlantic Insurance Company of New York, 1 Peters 38G. That decision places a construction on the 65th section of the Act of Congress, passed in 1799, which is as follows: “In all cases of insolvency, or when any estate in the hands of executors, administrators and assignees, shall be insufficient to pay all the debts due from the deceased, the debt or debts due to the United States shall be first satisfied; and any executor, administrator, or assignee, or other person, who shall pay any debt due by the person or estate, for whom or for which they are acting, previous to the debt or debts due to the United States from such person or estate, being first duly satisfied and paid, shall be answerable in their own person and estate, &c.” The Supreme Court held, that the priority, thus limited in behalf of the United States, was not a right that superseded and overruled an assignment made by the debtor, and subjected the property so assigned to execution; but was a right of prior payment out of the general funds of the bebtor, in the hands of the assignee. This decision is inapplicable to the present case. A similar provision of law is made in this State when a debtor for taxes dies between the time of giving in his taxes and the payment. A priority is created in behalf of the State for the tax, and the administrator is bound to respect that priority, at the peril of personal liability. Prince, 847. If this were the only provision of our law on the subject, the question would be very different. We should construe it as the Supreme Court did, a like law of Congress, as giving a right only of prior payment. But it is not. In the same section, the Legislature declares that the taxes shall be preferred to. all securities and
Let the judgment be reversed.