100 Ga. 372 | Ga. | 1897
The main question presented by this record is, whether or not a mortgagee of real estate has a right to redeem the same from a tax sale. Although this is a question that has been often ruled upon by the courts of highest res'ort in this country, this is the first time that it has been before this court. We think its proper determination, in any case, depends upon the wording of the statute which provides for the redemption of land sold for taxes, and the nature of a mortgage within the jurisdiction where a decision upon the question is invoked. Por we do not agree with those courts-which seem to hold that the right to redeem exists independent of statute. In the present case, it depends upon>
2. ^Fortunately for the mortgagee, there is a point in the case upon which the decision of the court below, in overruling the demurrer to her petition, should be sustained. Her equitable petition alleged, among other things, that a tax execution, for $39.67, had been levied upon a tract of land, comprising 371 acres, worth $3,000, that the land had been sold thereunder, and that the same was easily capable of subdivision, so that a parcel thereof could readily have been cut off, without detriment to the remainder, sufficient in value to have produced said taxes, without a levy having been made upon the whole. She prayed that said levy .should be decreed to be excessive, illegal and void, and that the sale thereunder be set aside. Taking these recitals to be true, she is here standing upon solid ground. This court held, in the case of Brinsoni v. Lassiter, 81 Ga. 40, that '“The levy of a tax execution for $3.60 on one hundred .acres of land, worth $1,200, is such a fraud on the law as ho render the sale void, at the option of the land-owner, and . a deed made in pursuance of such a levy and sale is void on its face, if it show the fact of such excessive levy.” In Morris v. Davis, 75 Ga 169, it was held that “When a piece of property consisted of two separate portions, derived from different titles, one embracing a front of twenty-seven feet on a street in a city, and the other a front of twenty-five feet, and either would have brought more than the taxes, $400 having been given for one of them, it was excessive to levy on and sell the entire property together for •some fifty dollars taxes.” And in the opinion of the court, •on page 174, it is said, the sale was void because of the excessive levy. See also Parker v. Glenn, 72 Ga. 644. The : Supreme Oourt of Iowa decided that “Where land appraised .at $800 was levied upon and sold, to satisfy a judgment for .$21 and accrued costs of less than that sum,” the levy was •excessive, and that “the sale should be set aside on that
3. The principal and interest due the petitioner and secured by her mortgage amounted to nearly the- alleged' value of the land. She had a right to invoke the aid of' equity in order to have the sale of the land under the levy of the tax execution set aside and the deed made in pursuance thereof declared to be void. She is vitally interested’ in having removed anything that will, naturally, injuriously affect the value- of the land at public sale under a foreclosure-of her mortgage, so that the land may bring its fair valuation. Irrespective, therefore, of the question ruled upon in the first head-note, the plaintiff’s petition set forth an equi
Judgment affirmed.