180 Ga. 436 | Ga. | 1935
Lead Opinion
1. The question presented is whether the entire taxes on two separate parcels of land subject to a tax fi. fa. issued generally shall be prorated, or whether Code (1910) § 6029 (1933, § 39-118) shall be applied. The taxes were for the year 1928. Prior to 1928 and throughout that year two creditors of a common debtor, who was ‘insolvent, each held, relatively to the other, the highest lien, each having a security deed to distinct property belonging to the debtor. Under Griffin v. Lane, 177 Ga. 31 (169 S. E. 306), and Federal Land Bank v. Farmers & Merchants Bank, 177 Ga. 505 (170 S. E. 504), and cit., the burden of discharging the lien of a tax execution should, as a general rule, upon equitable principles be apportioned between the two lien creditors by making-each of the separate properties liable ratably for its proportion of the whole
2, The fact that one of the security deeds was foreclosed after the taxes had accrued and one of the parcels of land sold does not affect the equity which requires a division of the tax burden ratably. Harry L. Winter Inc. v. First National Bank, 104 Ga. 364 (2) (138 S. E. 794).
3. - The court passed an order consolidating the two equitable suits of Ehrlich & Company and H. L. Gans v. Griffin, sheriff, and H. J. Rhames v. Griffin, sheriff, as well as the claim case of Elynn-Harris-Bullard Company D. Griffin, sheriff; all three cases involving the question of liability of the parties to pay a tax fi. fa. against Rhames. No exception was taken to this order, and no exceptions pendente lite, and only in the brief of counsel filed in this court is the question raised as to the right of the court to consolidate the cases. Therefore the question is not properly before this court for decision.
Judgment ajfir.med.
Rehearing
on rehearing.
The prior judgment of reversal is vacated and the opinion withdrawn, and the opinion and judgment of affirmance as above set forth is substituted.