9 S.E.2d 54 | Ga. | 1940
1. Proof by heirs of a decedent that he died in possession of land prima facie establishes their title.
2. As a general rule, property may not be sold under a tax execution issued in personam against one who has neither title nor possession, and no right to represent the owner. Such a sale is void as to the true owner, and does not operate to divest his title.
3. The tax execution under which the defendant claimed title was not in rem against the specific property, but was in personam against the deceased former owner, to enforce the collection of taxes assessed long after her death. Consequently the sale did not divest the title of the true owners.
4. Possession under color of title, in order to be the foundation of a prescription, must be public, continuous, exclusive, uninterrupted, and peaceable. The proof relied on by the defendant failed to meet the requirements of the statute. Consequently the defendant failed to prove title by prescription.
5. The plaintiffs having established title to the premises in dispute, they were prima facie entitled to have canceled outstanding deeds executed by and to the defendant and the impending consummation of a sale of the premises restrained. It was error to deny this relief.
On interlocutory hearing, Lundy appeared by affidavit, and adopted the allegations of the petition. He testified that he contracted to buy the property from the defendant in 1937, at which time he took possession; that the property was then vacant, the dwelling unfit for habitation, the land uninclosed and uncultivated, and there was no indication of occupancy. It appeared without dispute that Eliza Ann Martin died more than forty years ago, and at that time owned and possessed the property, and that the plaintiffs were her heirs at law.
The defendant, apparently without pleading formally, relied upon a sheriff's deed executed in 1928, and claimed title by prescription. The former chief of police of Greenville testified by affidavit, that in 1920 certain tax executions were issued "against the property of Eliza Ann Martin, who owned a house and lot, which is described in a sheriff's deed dated September 24th, 1928," by the City of Greenville for taxes due to the city for the years 1918 and 1919; that these executions were turned over to the sheriff of Meriwether County, a levy made, and the property advertised during August, 1920; that the property was put up for sale on the first Tuesday in September 24, 1920, and was purchased by the witness; that "a year or more later he went into possession of said property," and on September 24, 1928, sold it to the defendant; and that the tax executions have been lost or destroyed. The advertisement of the sheriff's sale carried by the Meriwether Vindicator during August, 1920, introduced by the defendant, recited that the property was "levied upon as the property of Eliza Ann Martin, to satisfy a tax fi. fa. issued by L. T. King, clerk of the City Council of Greenville, for taxes due said city for the years 1918 and 1919." The sheriff's deed, dated September 24, 1928 (eight years after the sale), recited that the property was levied on "as the property of Eliza Ann Martin," "in obedience to writ of fieri facias issued from the City of Greenville, . . for taxes due said City of Greenville for years 1918 and 1919, against Eliza Ann Martin." *272 There was no proof of actual possession of the property by the defendant. For the plaintiffs there was proof to the effect that Rich Martin, their father, continued in possession of the premises until his death in 1932, and the property remained vacant from that time until Lundy took possession in 1937.
The judge denied an injunction, and ordered that a deed be executed in compliance with the sale under the power contained in the deed from Lundy to the defendant. It does not appear from the record, or otherwise, that the sale it was sought to enjoin has actually been consummated. The plaintiffs excepted.
1. While the plaintiffs offered no written evidence of their title to the disputed premises, proof that their ancestor died in possession was sufficient. Bagley v. Kennedy,
2. "As a general rule, no property can be sold under a tax execution in personam as the property of the defendant therein, when the defendant has neither title nor possession nor any right to represent the person who has it; and a sale under these circumstances would be void as to the true owner. Nelson v.Brown,
3. "Taxes shall be charged against the owner of property if known, and against the specific property itself if the owner is not known." Code, § 92-110. While this statute makes no specific reference to municipal taxation, the procedure and rights of municipalities in enforcing collection of taxes should be viewed in harmony with the general law. Thus it has been held, that, in the *273
absence of charter power, officers of a municipality, having in charge the matter of levying and collecting taxes, are without power to issue an execution in rem against land, where its ownership is not in doubt. Justice v. Parnin,
4. A sheriff's deed, even though defective, may be color of title. Knox v. Yow,
5. Under the foregoing rulings, the plaintiffs were entitled to have canceled the deeds referred to in the petition; and it was error to deny an injunction. As it does not appear from the record or otherwise that the acts they sought to enjoin have been actually completed since the interlocutory ruling, the judgment must be
Reversed. All the Justices concur.