99 Ga. 738 | Ga. | 1896
D: B. Leonard brought his action against B. S. Pilkinton for trespass, recovery of land, cancellation of deeds, injunction, etc. The land in dispute was lots 157 and 159 in the 6th district of Dooly county. Upon the trial plaintiff introduced the wild land tax digest for the years 1884 and 1885, which showed that said lots had not been returned for taxes for either of those years. The instrument under which plaintiff claims the land in controversy is a deed
“State of Georgia, Dooly County.
To the sheriffs of this State:
“You are hereby commanded that of the goods and chattels, lands and tenements of lot of land 157, 6th dist. Dooly county, Georgia, 'you cause to be made the sum of -dollars and seventy cents, due by him for his State taxes for the year 1885; and the further sum of-dollars and eighty cents, due by him for his county taxes fori the year 1885, and the sum of-dollars and fifty cents for costs of fi. fa., and have you promptly the said sums of money to be paid to us upon collection thereof, to be rendered to the said State and county, the principal and costs aforesaid, and have you then and there this writ. Given under my hand and seal this 23d day of June, 1886.
[Signed] John H. Woodward,
Tax-Collector for Dooly County, Ga.”
“Georgia, Dooly County. I have this day levied the within tax fi. fa. on lot of land number 157 in the 6th land district of said county, for State and county taxes for the year 1885. This June 29th, 1886.
[Signed] Russell Kellam, Sheriff, D. Oo., Ga.
“Recorded on page 421 Book 'M’ April 12th, 1889.
[Signed] Z. T. Penny, C. S. C., Dooly Co., Ga.”
(Plaintiff also offered in evidence a paper which was an •exact copy of the one next above described, with the exception that it was issued against lot 159 instead of lot 157, the levy being identical, but separate, and the record thereof being on. pages 418 and 419 of the same book of records.) To the introduction of said deeds and fi. fas. counsel for defendant objected upon the ground that the fi. fas. were void, for the reason that they should have shown on their face that the lands were unreturned wild lands, and that said deeds should have shown that the lots were offered in parcels before the whole lot was sold. The court below .sustained the objection, excluded both the deeds and executions offered, and upon motion of counsel for defendant granted a nonsuit, to which ruling plaintiff excepts.
1. The right of the plaintiff to maintain this action is dependent upon the validity of his claim to the land in controversy. It is an established principle of law, that the legality of a tax execution under which a sale of land is made is essential to the validity of the title of a purchaser of such land thereunder. Black in his work on Tax Titles lays down the general rule to be, “The title to be acquired under statutes authorizing the sal© of land for taxes must be regarded as stricbi juris, and whoever sets up a tax title must show that all the requirements of the law have been complied with.” In this case, therefore, it will only be necessary for us to inquire as to whether or not the /?. fa. referred to in the sheriff’s deed and now under consideration was regular and legal, and in strict compliance with the statute 'authorizing its issuance. Code, §874(b) provides
From this statute it will be noted that the power of the tax-collectors of this State to issue executions against wild and unimproved land, for the non-payment of taxes due thereon by the owner, is dependent upon a nonreturn of such lands for taxes, because it expressly limits such power to "wild lands not given in for taxes;” and it is therefore essential to the exercise of this power, and to the validity of the title of a purchaser of such land, acquired at a sale under and by virtue of an execution so issued, that it appear from the recitals in the execution, not only that the land against which the same was issued was wild and unimproved, but that it was likewise unreturned for taxes by the owner. The execution in the present case fails to state anything with reference to the land against which it was issued being wild and unimproved. It is also silent as to the fact of it not having been “given in for taxes” by the owner.
Code, §897, provides: “When property is assessed for taxes, which has not been returned by any one, as soon as
2. The paper under consideration purporting to be a tax execution was addressed to the sheriffs of this State, and directed “that of the goods and chattels, lands and tenements” of a specified lot of land (which though .in fact wild was not so described in the paper), they cause to be made stated sums “due by him for his” State and county taxes for a named year. This was certainly not a legal execution against any defaulting taxpayer, because none was named. Nor could it be construed as a legal execution against the land described. It did not recite that the land was wild, or that it had not been returned for taxes, or that any taxes were due thereon, nor did it set forth any facts authorizing its issuance against the property in rom. Hence it was fatally defective; it was a mere nullity; it was absolutely void. The execution being the sole authority for the sale, it should show such facts as will invest itself with at least prima facie legality. In the present instance the execution was void, and therefore the sale made and deed given by virtue thereof were void also, and the court below committed no error in sustaining the objection of defendant’s counsel to the introduction in evidence of the executions and deeds, and granting a nonsuit.
•Judgment affirmed.