5 S.E.2d 756 | Ga. | 1939
1. On presentation, under the Code, § 39-1313, of an application, by a purchaser at sheriff's sale under tax executions, to be placed in possession of fland, the application reciting that a certain person was in possession by, through, or under the defendant in execution, the judge issued a rule nisi directed to the sheriff and to the person in possession; and in response that person demurred on the grounds: (a) that it was not alleged that *284 the respondent was the defendant in execution, his heir or tenant, or one of his assignees since the judgment; (b) that it was not alleged that the levy was not excessive; and (c) that the defendant in execution was not made a party. Held, that it was not error to refuse to dismiss the application on the demurrer. 2. A demurrer which is speaking in character should be overruled.
3. A purchaser at a sale which is void because the levy is excessive, whose money is applied to the extinguishment of a lien on the property sold, is entitled, in defense to a suit by the owner or his assignee to declare such sale void, to have the court decree, as a condition that it will grant the prayer to cancel the purchaser's deed, that such purchaser be reimbursed to the extent that the purchase-money was used to pay off a valid and subsisting lien upon the property.
4. Where the sole issue submitted to the jury was whether or not the levy was excessive, it was erroneous to charge that "The question for you to determine, and the only question for you to determine is whether the levy on the tract of land was an excessive levy, that is, too much land levied on for the purpose of realizing the amount of the fi. fas;" there being no instruction in connection therewith, or elsewhere in the charge, as to what would constitute "too much land."
Since a new trial must be granted because of the error in the charge, no ruling will be made on the general grounds of the motion.
The court passed an order requiring that the petition be served on the sheriff and on Cullars, and that they show cause before him, on a date named, why the prayers of the petition should not be granted. To this order and to a refusal by the court to pass an order directing the sheriff to put the petitioner in possession, exceptions pendente lite were taken. The sheriff served the petition on Cullars, but did not himself make response. Cullars filed his response, admitting the allegation that he was "in possession by, through, or under the defendant against whom the fi. fas. were issued." He did not state that he held any deed of any character; but he attacked the tax sale made to the petitioner, on the ground that it was void because of an excessive levy. The property sold at the tax sale was 294 acres of land, and the price paid at the sale was $568. The petitioner objected to the proceedings, and objected to Cullars being heard in opposition to the granting of the order prayed for, and to petitioner's attack on the sale because of excessive levy. The court passed an order adjudging that the answer of Cullars raised questions of fact to be submitted to a jury, and directed that the petition and all other pleadings be filed and the case docketed for trial before a jury. To this order the petitioner excepted pendente lite. The petitioner presented an amendment alleging that Loflin was in possession when the tax sale was made, and that Cullars claimed under a chain of title originating in Loflin and devolving from him subsequently to the said levy and sale; and that a term of court had passed since such tax sale. A demurrer to the response of Cullars was overruled, and the petitioner excepted pendente lite. In another amendment to the petition it was prayed that, should the court rule that Cullars's title was good, it be ruled that petitioner's payments made for the tax executions and at the tax sale become liens on the property. Cullars's demurrer to the petition as amended was overruled, and he excepted pendente lite. At the trial the judge submitted to the jury but one question, whether the tax levy was excessive. Petitioner objected to the right of Cullars to raise that question, and excepted pendente lite to the court's order. The *286 jury returned a verdict in favor of Cullars. The plaintiff excepted, assigning error on the rulings stated above. 1. When Interstate Bond Company, the purchaser at the tax sale, applied to the judge of the superior court, under the Code, § 39-1313, for an order directing the sheriff to put it in possession, the judge issued a nisi directed to the sheriff and to Cullars, the tenant in possession, to show cause why the order prayed for should not be granted. At the hearing, after the application had been amended, Cullars demurred thereto; and his demurrer being overruled, he excepted. One ground of demurrer was that the applicant failed to allege that the respondent was the defendant in execution, his heir or tenant, or one of his assignees since the judgment. It was stated in the application that applicant was the purchaser under certain tax executions against J. T. Loflin, and that the property so purchased was in the possession of T. W. Cullars, who had said possession by, through, or under the defendant against whom said fi. fas. were issued. That ground of the demurrer was without merit. The position of counsel is that under the Code, § 39-1309, and other applicable provisions of the law, no person other than the defendant, his heirs, or their tenants or assigns since the judgment can be summarily evicted from land by virtue of a sale under execution. The Code, § 92-8102, declares that sales under tax executions shall be made under the rules governing judicial sales; and § 92-8108 provides that, as to such sales, the officer selling has the authority to put purchasers in possession of land sold under tax fi. fas. as in other cases. Another ground of demurrer was that the value of the property was not alleged, nor was there an allegation that the levy was not excessive. This ground is without merit. The only reason suggested why, in an application of this kind, the value of the property should be set forth is that it would tend to show whether or not the levy was excessive; but this contention, if sustained, would be to eliminate the principle that there is a presumption that the sheriff did his duty, and therefore did not make an excessive levy. The only other ground of demurrer argued is that Loflin, the defendant in execution, was a necessary party. The application under the Code, § 39-1312, or § 39-1313, is not a suit. Strictly speaking, there are no parties to it. The provision for summary process contains *287 no requirement for notifying the defendant in fi. fa. or any one else. It was not erroneous to overrule the demurrer. These rulings dispose of the cross-bill of exceptions.
2. While counsel for the plaintiff assigned error on the issuing of a rule nisi on the application originally presented to the court, in his brief he expressly abandons that exception. Therefore we have not for decision any question as to what is the correct procedure when such an application is presented. CompareWilliamson v. White,
3. The verdict on the issue submitted to the jury, whether or not the levy was excessive and void, was in favor of Cullars. Error was assigned on that part of the decree which fixed the amount of tax liens against the property which Cullars must refund to Interstate *288
Bond Company. In framing a decree on a verdict, it is proper to examine the pleadings, admissions made by the parties, and all undisputed facts. Law v. Coleman,
The decree treated the executions for the years 1928 and 1930 as unenforceable, under the Code § 110-1001, and declared that the levy and sale of the land thereunder was not such a bona fide effort to enforce the executions in court as contemplated by the Code. The decree further recited that section 92-5712 of the Code applied to the tax execution of 1932, and that of the $64.15, the amount of taxes assessed against the 435 acres of land for said year, Cullars was to pay $43.23 as his proportionate part.
Thus are presented two questions concerning the correctness of the decree. The first of these is, were the tax executions for the years 1928 and 1930 unenforceable because the seven-year period mentioned in the Code, § 92-7701, had elapsed, without bringing the same within either of the saving clauses of subsections 2 and 3 of § 110-1001. The second is, could the court give effect to section 92-5712, in relation to proportionate payment of taxes, in the absence of a prayer to that effect, when persons owning other portions of the land were not made parties. But we need not inquire whether section 110-1001 applies to tax executions, or, if so, whether the levy of a tax fi. fa., though subsequently adjudged void for excessiveness, is such a bona fide effort on the part of the plaintiff to enforce the execution as would bring it within the exception referred to in subsection 3 of § 110-1001, or whether § 92-5712 can be applied in the absence of proper pleadings and additional parties. Such inquiries are immaterial, because the enforcement of these tax executions is not being sought at law, and the rights *290
of the transferee thereof are to be measured by equitable principles, rather than by strict law. "He who would have equity must do equity, and give effect to all equitable rights in the other party respecting the subject-matter of the suit." Code, § 37-104. This is a codification of one of the oldest principles in equity jurisprudence. It has been referred to as the golden rule of equity, founded on that other golden rule proclaimed by the Great Teacher in the Sermon on the Mount: "All things whatsoever ye would that men should do to you, do ye even so to them; for this is the law and the prophets." Cullars, in his cross-action asking for cancellation, occupies the position of a plaintiff seeking affirmative equitable relief. In such a case equity will not aid him unless he makes provision for all the equitable rights of his adversary respecting the subject-matter of the suit. It is no answer for Cullars to say that in a suit at law some of these tax executions are stale, and for that reason unenforceable. "The court of equity refuses its aid to give to the plaintiff what the law would give him if the courts of common law had jurisdiction to enforce it, without imposing upon him conditions which the court considers he ought to comply with, although the subject of the condition should be one which the court would not otherwise enforce." 1 Pomeroy's Equity Jurisprudence (4th ed.), 714, § 385. The principle was applied by this court in Kirkland v. Downing,
4. The judge submitted to the jury but one question, whether or not the levy was excessive. Their verdict was in favor of Cullars, thus finding in effect that the levy was excessive, and that the sheriff's sale thereunder and the deed made by him were void by reason thereof. In the motion for new trial complaint is made that on the vital issue submitted the judge charged the jury that "The question for you to determine, and the only question for you to determine, is whether the levy on the tract of land was an excessive levy, that is, too much land levied on for the purpose of realizing the amount of the fi. fas.," and did not in connection *293
therewith or elsewhere in the charge explain to the jury what would constitute "too much land," or how the jury was to determine what would constitute "too much land," or what facts and factors should be considered by the jury to determine whether or not "too much land" was levied on. We think the complaint well founded. The judge should have given the jury some other instruction on the subject. They might well have inferred from the charge that the levy would be excessive if the officer levied on any amount of land more than barely enough to bring the amount of the executions which were levied. In Hunt v. Lavender,
5. It is insisted that the verdict was without evidence to support it; for while there was evidence which tended to show that the value of the property was largely in excess of the amount of the executions levied, and further testimony that the property was capable of subdivision, there was no proof that any one or more of the subdivisions was reasonably worth that amount. Since a new trial must be granted on account of the error in the charge pointed out, and the evidence on the next hearing may not be the same, we do not pass on the general grounds of the motion. Still other questions are made in the record, but those already ruled on are controlling.
Judgment reversed on the main bill of exceptions, and affirmedon the cross-bill. All the Justices concur. *294