11 S.E.2d 891 | Ga. | 1940
Lead Opinion
1. Where an owner of realty enters into a written contract with another by which the former demises and leases to the latter an estate therein for fifty years, with an option to the lessee to purchase at any time within the fifty years at a stipulated price, with an obligation on the part of the lessee to purchase said property upon the terms and conditions contained in the option, whenever the lessor shall be in position to convey to the lessee an absolute, unincumbered, and indefeasible title; the lessee being placed in possession, and obligating himself to place on the property certain permanent improvements of a designated value, to pay by way of rental a certain sum per month during the full term of the lease, and all taxes that may be assessed against the premises, the lessee having the right to remove a building already on the premises, with the right of the lessee, after certain improvements have been placed thereon, to transfer and assign the lease and thereupon to be relieved of all further obligations thereunder; and where the owner of the fee does not return the property for taxation, or pay the taxes thereon, but the same is returned by the lessee, and the taxes thereon are assessed against the lessee in possession, and on default in the payment of taxes the premises are levied on and sold as the property of the lessee: Held, that the purchaser of the premises at the tax sale acquires the property divested of the owner's and lessor's title.
2. One who by inheritance succeeds to the interest of such original owner in the property will not be heard in a court of equity when seeking to cancel the deed of the purchaser at such sale, on the ground that the levy was excessive, without paying or offering to pay all unpaid taxes due on said property when the ownership thereof was in the person from whom it was inherited.
3. The rulings announced above are controlling; and without regard to various other substantial questions made by the record, it must be held that the judgment of the trial court was correct in overruling the demurrers interposed by plaintiff in error, and in sustaining the demurrer to her answer and cross-action.
The lessee and his transferees were in possession of the property. Under a return of the nature stated above an assessment was made; and there having been a default in the payment of taxes, the taxing authorities of the City of Atlanta levied on the property, and it was sold, the city being the purchaser, they in turn deeding it to a third party, who went into possession. Subsequently, upon default *78
in the payment of county taxes, the county taxing authorities sold it at a tax sale. In the meantime Winecoff had placed a deed to secure debt upon his leasehold interest in the same, and executed a trust indenture to certain trustees, whose successor in trust was Wilfred G. Gehr. Mrs. Rosenkrantz having died, the Trust Company of Georgia qualified as her executor. It filed in Fulton superior court a petition asking for direction, averring that Mrs. Rosenkrantz had made a number of special bequests in her will; reciting what has been stated above with reference to this property, and that special legatees were insistent that their legacies be paid to them; and asking the direction of the court. A decree was entered, permitting that the legacies be paid, on the assumption that even if the estate of Mrs. Rosenkrantz was liable for the taxes on this property, it was of sufficient value to satisfy them. Later, Gehr as trustee filed a suit in which he sought to set aside the tax sales referred to above, one of his grounds being that of an excessive levy. His cause was decided adversely to him, and he brought it to this court, where the writ of error was dismissed. In one or the other of these cases appeared as defendants the City of Atlanta, the marshal of that city, the Fulton County tax-collector, and the intervention of the State revenue commissioner, who asked for receivership of the property. On motion Mrs. Lowe, the plaintiff in error, was made a party over her objection. She filed demurrers to various pleadings of the other parties, and in every instance her demurrer was overruled. By answer and cross-action she invoked the power of a court of equity to cancel the tax deeds, alleging that under the tax returns as made, the assessments, the execution, the sale and the deeds thereunder, nothing passed to the purchaser except the leasehold interest; and that the deeds were void for the reason that the levy was excessive. Her answer, cross-action, and amendment were dismissed on demurrer. In the meantime an order consolidating the two cases for the purposes of trial had been taken. Mrs. Lowe excepted to each of the rulings refusing to sustain her demurrers to the pleadings of her adversaries, and to the sustaining of the demurrers to her pleadings. A bill of exceptions was sued out in each case. The questions presented are identical, were argued together, and will be disposed of in one opinion.
1. The assignments of error fall into two classes, the first of which is the overruling of Mrs. Lowe's general demurrers to the intervention of Head, revenue commissioner, and to the one by Fulton County, and to the answers of the City of Atlanta, or Elder, municipal revenue collector, and of Suttles, the tax-collector of Fulton County. The second class of exceptions relates to the sustaining of demurrers to her answer and amendment. In these pleadings she asked for affirmative equitable relief. She is plaintiff in error, and therefore has the burden of showing not only error but injury. If the purchaser at the city marshal's tax sale acquired a good title to the fee, the ultimate result reached by the trial court was correct, and no injury has been done to the plaintiff in error. She attacks the sale on two grounds, the first being that only the title to the estate for years could have passed, since the executions were issued in personam against the holder of the estate for years. She relies on the line of decisions holding that where land is held by a life-tenant, and taxes are assessed against him and executions issued in personam only, a sale under levy of such executions passes only the life-estate. Stone v.Franklin,
The present issue however, is not between parties who own different interests in the same property, but between the taxing authorities and the owner of the fee. We might concede that under this record the public might have assessed the taxes against either the lessee or the lessor; but that proposition does not reach the issue before us, which is, did the entire fee pass to the purchaser under a sale by virtue of a tax execution issued against one with the word "lessee" after his name, on an assessment made in the same manner, the tax deed reciting that the purchaser is to have and to hold the premises "in as full and ample a manner as the said [named] lessee or its heirs and assigns did hold and enjoy or might have held and enjoyed the same, had it not been seized and sold under the execution aforesaid," the defendant in fi. fa. not actually owning the fee, although in actual possession under the *81
owner of the fee, by virtue of a contract of the nature of one hereinbefore described? The problem is not solved by merely recognizing, as we do, that a leasehold interest is itself taxable. Henry Grady Hotel Co. v. Atlanta,
In Beaton v. Ware County,
In State v. Hancock,
In the instant case it is argued that only the interest of the lessee could have passed under the tax sale, because the returns showed that they were made by Winecoff as lessee, and that the fi. fas. were issued against Winecoff, lessee. As a matter of fact the record does not show that the returns were made by Winecoff "as lessee." The return is headed, "W. F. Winecoff (Lessee)." The word "Lessee" appears nowhere else in the return; nor does it appear in the oath thereto, which was signed, "W. F. Winecoff." But in this connection, we quote from the opinion in the Barnes case, supra, to wit: "Here the title to the property sold under the fi. fa. was in the trustee, and the only irregularity was that the process was issued against him individually. Under the doctrine of the Hancock case, supra, this was not fatal to the validity of the sale, because, in point of fact, the execution was actually issued — at least in part — for the tax on the identical land which was sold under the execution." Basing the decision squarely upon State v. *84 Hancock, and Barnes v. Lewis, it was held, in Dawson v.Dawson,
2. The plaintiff in error, in an amendment to her answer and cross-action, makes the further point that the levy of the fi. fa. was void, for that it was excessive. The court struck this on demurrer. The allegations as to the excessive levy must be considered with admissions and other allegations in the pleadings. Mrs. Lowe was in a court of equity. She was seeking affirmative equitable relief, to wit, that the several tax deeds and executions be canceled as clouds on her title, as well as that the fee-simple title be decreed to be vested in her. The subject-matter of the action is realty, the fee in which she claims by her inheritance through her deceased husband, who in turn received it as heir at law from Mrs. Rosenkrantz. She admits that neither she, nor her husband, nor Mrs. Rosenkrantz ever returned the property for taxation, or ever paid any taxes on it since Mrs. Rosenkrantz placed her lessee in possession of it. Several years taxes are due. Without offering to pay any taxes, she asks a court of equity to set aside certain tax deeds, on the ground that the levies were excessive. It has several times been decided by this court that one seeking relief from excessive tax levies, but admitting either expressly or by necessary implication that he owes part of the tax covered by such executions, must pay or offer to pay the amount of the taxes admitted to be due, in order to obtain the relief sought. Elder
v. Home Building Loan Association,
Many other law questions were raised and argued, but the rulings stated above necessitate a judgment of affirmance.
Judgments affirmed. All the Justices concur, except
Dissenting Opinion
The return for taxation by W. F. Winecoff, in which the identity of the realty is set forth, shows that the return was made by Winecoff, not as owner, but as lessee. The tax deeds by their express terms conveyed only such interest as the lessee had; that is, the deeds were in legal effect a conveyance of the leasehold. No one could question the fact that a leasehold of more than five years constitutes an estate in land. That such an estate is taxable, could be returned for taxes, and sold for taxes, would seem clear. Accordingly, while I agree to much of the reasoning of the opinion, I can not concur in those portions which seem to adjudicate that the grantees, claiming under these tax deeds, acquired a full fee-simple title to the realty involved. That the fee might have been levied upon, sold, and conveyed is not the question; but the question is, was it conveyed? The first clause in the tax deed to the county, identifying the property, and conveying it in mere general terms, is descriptive in character; the subsequent clause, which is the only portion of the deed dealing with the particular subject of what quantum of estate was intended to be thus conveyed, expressly limits and defines it to such interest as was held by the named lessee. This specific limitation upon the quantum of the estate conveyed should take precedence over any antecedent language conveying and describing the property in general terms. If the granting clause had undertaken to define the quantum of the estate conveyed, a different question might be *86 presented, since it has been recognized as a general rule that the granting clause will be given effect over inconsistent terms in the habendum clause. See 16 Am. Jur. 566, § 232. This same authority, however (§ 237), sets forth what it terms the "modern liberal rule giving effect to intention as derived from all portions of the instrument." This so-called "modern" rule is stated as being widely accepted. But irrespective of any variation between the original and this so-called "modern" rule, it is laid down by this same authority (§ 239) as the uniform rule, almost without exception, that the specific terms in the habendum clause will control over a granting clause merely general in character. Since the tax deed to the county did not by its granting clause purport in terms to convey the property in fee-simple, or otherwise in any way specifically describe the quantum of the estate conveyed, it would seem that what has been stated by this authority as the general rule followed almost universally would have application. The first paragraph of § 239 is as follows: "Since the purpose of the habendum has, from early times, been to limit, explain, or qualify the estate limited in the granting clause, it is, almost without exception, held that where the granting clause is general and does not contain words of limitation or otherwise set forth a specific estate, the habendum will be given effect in explaining or qualifying what estate was intended. This rule is of uniform application both in the few States where words of limitation in the grant are still necessary in order to pass a fee and in the many States where it is provided by statute that a fee will pass without the use of words of limitation unless a contrary intention appears. Furthermore, the same result is reached both where the modern rule that the intention of the parties as derived from the whole instrument must control is applied, and where the old technical rule that the earlier of the two clauses must control applies." 16 Am. Jur. 573, and cit.
What has been said has reference to the tax deed to the county. As to the deed to the city there is no habendum clause, but the limitation as to the quantum of the estate conveyed was expressed in the conveying clause itself.
Chief Justice REID concurs in this dissenting opinion.
Addendum
In the brief in support of the motion for rehearing extended comment is made on the dilemma in which the movant was placed with respect to the amount of taxes, if any, which she ought to have tendered. It is pointed out that if the sales under the tax executions were treated as valid, as contended by the taxing authorities, then after such sales no taxes could accrue as against the movant; and that in any event none were lawfully assessed. Since no tender of any sum whatever was made, it was unnecessary to determine whether, if a tender had been made, it should have included taxes claimed by the taxing authorities after the sales and execution of the tax deeds in pursuance thereof. Our decision goes no farther than to say that the movant should at least have tendered the amount of the taxes involved in the tax deeds. Since neither this nor any other amount was tendered, the cross-actions filed by the movant were properly stricken on demurrer, regardless of whether she should have tendered other sums claimed by the taxing authorities.
What has just been said as to tender will now be qualified to this extent: If we should assume that where the property had been sold under execution for state and county taxes, and a deed made in pursuance thereof, the municipal authorities could not thereafter have sold the property so as to divest any title or interest of this movant, and that in these circumstances the plaintiff in error would not have been required to make any tender to the municipality, yet the only attack which is made on the tax sale and the tax deed in pursuance of a levy for state and county taxes is that the levy *88
was excessive. And without a tender as to this transaction the plaintiff in error would not be entitled to cancellation of this latter deed. And if she can not have this deed canceled, she would be without such right or interest in the real estate as to authorize her to maintain an action for cancellation of the city marshal's deed. In Cooper v. Peevy,
While it is further true that the plaintiff in error did deny some of the allegations contained in the pleadings of the other parties against whom she is now seeking relief of cancellation, and these denials might in other circumstances have put the burden of proof on such other parties as to material allegations, yet, from the whole pleadings of the plaintiff in error and these other parties against whom she sought to proceed in her cross-action, the facts appear without dispute as they were dealt with in the original opinion. Counsel for movant refers to the general rule that a court of equity will not aid the State or a county or city in the collection of taxes, an adequate remedy being provided by law. Whether or not this rule may be subject to exception (Georgia Power Co. v. Decatur,
As to the form of the tax deeds executed by the sheriff and the marshal, we think now, as before, that there was nothing in either deed to limit the conveyance to a mere leasehold interest. The lessee was not only authorized by the original lease to return for taxation the entire property or estate in this tract, but was actually bound to do so under the terms of the contract as between the lessor and the lessee. The lessee was thus necessarily made the agent of the lessor for this purpose; and being in lawful possession of the property, the return made by such lessee of the entire estate authorized execution against such lessee as the party making the return, and would further authorize a sale of the whole interest in the tract as the property of such party. Especially is this true when the lease contract did not stipulate in whose name the property should be returned. Now if these things are true, the tax deeds would not have the effect of limiting the conveyances merely to the leasehold estate, simply because they recited that the property was to be held by the grantee only in as full and ample a manner as the same had been owned or held by the defendant in execution, who in this instance happened to be the lessee, because the return had been made in the name of that party. Let us suppose, for instance, that a husband is in possession of a tract of land with his family, and he is in general charge and management of it as agent of his wife, and that the property is actually the *90 property of his wife. The husband returns the property in his own name, and his wife is in no way mentioned. If the taxes are not paid, execution would naturally be issued against the husband. If a sale was made, the recitals in the tax deed would naturally refer to the husband as the defendant in execution, and would finally and properly say that the grantee should have and hold the property in as full and ample a manner as it was held and enjoyed by such defendant in execution. All of this would be in accordance with previous decisions by this court as to tax sales following returns in such manner. See authorities cited in the original opinion. Assuredly it would not be claimed that in such instance the tax deed did not convey anything except such interest as the husband may have had as against the wife. On the contrary, for all purposes as between him and his wife on one side, and the taxing authority on the other, he would be treated as the owner of the entire estate, just as it was returned by him for taxation. The tax deeds involved in this case are in the usual form. The statements contained in them as to the title or interest conveyed were inserted, not for the purpose of reducing the quantum of interest below the quantum which had been returned for taxation, but rather for the purpose of avoiding a warranty or an effort to sell a greater interest than was owned or held by the defendant in execution, who in these instances must be treated as owning or holding the entire interest for the purposes of taxation, in view of the authority granted by the owner and the return actually made of the entire estate under such authority.
We have said that these deeds are in the usual form in referring to the property conveyed as that of the defendant in execution. In support of this statement we quote: "The sheriff, in conducting a sale under execution, acts as the agent and representative of the defendant in execution, and can sell no greater interest in the property than the defendant in execution could convey." Cooper v. Davis,
In view of what has been said here and in the original opinion, it is immaterial whether the lessee had merely an option to purchase, or under the terms of the contract had become bound to purchase the real estate in question. That contract in any view authorized and bound him to return the entire estate for taxation, and returns were made while the lessee was in possession. In referring to the question of agency we do not mean to imply that he was an agent for any purpose except for the return of taxes; and to that extent he was an agent both with plenary power and imperative obligation.
The foregoing observations cover the main points urged in the motion for rehearing; and on the whole we are of the opinion that none of the grounds of the motion show any substantial reason why a different opinion or judgment should be rendered.
Rehearing denied. All the Justices concur, except Reid, C.J., and Jenkins, J., who adhere to the views heretoforeexpressed.
