120 Ga. 936 | Ga. | 1904
The plaintiffs in this case, as executors of the estate of Mrs. Helen A. Nevin, brought their petition for a rule against the sheriff of Floyd county, making substantially the following case: A certain mortgage fi. fa. in favor of Mrs. Nevin for $1,000 principal, and $96.66 interest, besides costs, was placed in the hands of the sheriff, and was by him levied on property set forth in the fi. fa. At the regular sheriff's sales on the first Tuesday in October, 1902, the property was sold for $1,205. After paying the "costs of the proceeding, amounting to $45,03, the sheriff applied $124.91 of the fund to the satisfaction of two executions for State and county taxes for the years 1901 and 1902, leaving a balance of $1,034.06, which was applied to petitioner’s fi. fa., the amount remaining due thereon after such application being $82.60. By amendment it was alleged .that at the time of the sale under the mortgage foreclosure, the defendant in fi. fa., Mrs. Nance, owned another piece of property of equal value with the one sold under Mrs. Nevin’s mortgage fi. fa.; that there was a surplus left in the hands of the sheriff after satisfying Mrs. Nevin’s fi. fa., sufficient to pay the pro rata share of the taxes the property sold under her fi. fa. should have borne, without encroaching on the amount due on the mortgage fi fa.; and it was prayed that the amount due on the tax executions be prorated equally between the two pieces of property mentioned, and that $62.45 of the fund arising from the sale on the first Tuesday in October, 1902, be applied to the satisfaction of the tax fi. fas., and the balance of $62.45 applied to the payment of the balance due on the mortgage. By further amendment it was alleged that Mrs. Nance was insolvent at the time of the sale of the property on the first Tuesday in October, 1902. A rule nisi was issued against the sheriff, who answered, admitting that the mortgage fi. fa. for the sum stated was placed in his hands and that it was levied on the mortgaged property. His answer fur
From the foregoing it will be seen that a short time after the sale of the property under the mortgage fi. fa. of Mrs. Nevin, the sheriff paid over to her attorney the amount realized from the sale, less the accrued costs and the aggregate amount of the two tax fi. fas. It is of course clear that these tax fi. fas. constituted a lien on the property superior to that of the mortgage fi. fa. At the time • when the money was paid over to the transferee
From the sheriff’s testimony it appears that he ■ promptly paid over all the money in his hands, first settling for the tax executions and then paying the balance to the plaintiffs’ attorney. It will be noted that Mrs. Watson, the holder of the mortgage on the other piece of property belonging to Mrs. Nance, was not made a party to this proceeding. It does not appear whether any levy had been made under her mortgage. Under the facts disclosed by the record, we think the court was clearly right in discharging the rule against the sheriff. . Had both the mortgage fi. fa. of Mrs. Nevin and that of.Mrs. Watson been in the hands of the sheriff, and had there been, at the time the rule was brought, money in his possession arising from the sale of both pieces of property, then, under appropriate pleadings, the court might with propriety have required each piece of property to pay its pro rata share of the taxes assessed against Mrs. Nance. But it affirmatively appeared that the sheriff sold the piece of property from which this fund arose in October, 1902, and that at that time it was the only property of Mrs. Nance sold; and the tax fi. fas. being a superior lien upon any piece of property owned by Mrs. Nance at that time, the sheriff could do nothing else, when all were placed in his hands, than to pay off the tax fi. fas. first. There is a clear distinction between this case and the case of Brooks v. Matledge, 100 Ga. 367, relied on hy counsel for the plaintiffs in error. In that case, one of two creditors of a common debtor had paid and had procured a transfer to himself of tax executions which were a lien on property upon which he held a mortgage, and sought to have the entire amount of the executions taken out of the fund realized from a sale under the foreclosure of a mortgage of the other creditor on different property; and it was held, on equitable principles, that the two pieces of property should bear the burden ratably. From the statement of facts which has already been made, it will be seen at á glance, that the present case involves no such contest. By the provisions of the Civil Code, §2791, liens for State and county taxes are declared to be superior to all other liens, taxes due the State being first in rank, and taxes due the county second; and such
Judgment affirmed.