164 Ga. 861 | Ga. | 1927
1. “Liens for taxes due the State or any county thereof, or municipal corporation therein, shall cover the property of taxpayers liable to tax, from the time fixed by law for valuation of the same in each year until such taxes are paid. . . Such liens for taxes are hereby declared superior to all other liens.” Civil Code (1910), § 3333.
2. “Taxes shall be paid before any other debt, lien, or claim whatsoever, and the property returned or held at the time of giving in, or after, is always subject.” Civil Code (1910), § 1140; Verdery v. Dotterer, 69 Ga. 194 (2). This applies to all property returned or held by a taxpayer that is subject to taxation under the constitution of this State.
3. A sale of property under execution issued from a court of competent jurisdiction does not divest the liens of the State or county for taxes. Civil Code (1910), § 1141; Wilson v. Boyd, 84 Ga. 34 (10 S. E. 499) ; Planters Warehouse Company v. Simpson, 164 Ga. 190 (138 S. E. 55).
4. “Whenever any person, other than the person against whom the same has issued, shall pay any execution issued for State, county, or municipal taxes, . . the officer whose duty it is to enforce said execution shall, upon the request of the party paying the same, transfer said execution to said party; and said transferee shall have the same rights as to enforcing said execution and priority of payment as might have been exercised or claimed before said transfer: Provided, said transferee shall have said execution entered on the general execution-docket of the superior court of the county in which the same was issued, and if the person against whom the same was issued resides in a different county, then also in the county of such person’s residence, within thirty days from said transfer. And in default thereof such executions shall lose their lien upon any property which has been transferred bona fide and for a valuable consideration before the record and without notice of the existence of such execution.” Civil Code (1910), § 1145.
5. “Equity is ancillary, not antagonistic to the law; hence equity follows the law where the rule of law is applicable, and the analogy of the law where no rule is directly applicable.” Civil Code (1910), § 4520; Stuard Lumber Co. v. Taylor, 150 Ga. 135 (102 S. E. 894), which was cited and applied in Citizens & Southern Bank v. Union Warehouse &c. Co., 164 Ga. 735 (4). See also Brewer v. New England Mortgage Security Co., 144 Ga. 548 (87 S. E. 657).
6. If an owner of realty executes a deed to realty as security for a loan, and continues to hold and return the property with other realty and personalty for taxation by the State and county, and if taxes are allowed to accumulate and remain unpaid, and if the secured debt be reduced to judgment and declared a special lien on the land, and the land be brought regularly to sale under the execution issued upon the
7. The case differs from National Bank of Athens v. Danforth, 80 Ga. 55 (7 S. E. 546), which was not a suit between the taxing authorities and the holder of a contractual lien to apportion a fund after sale, but was a suit to enjoin a sale and establish priorities between several holders of contractual liens, one of.whom was a transferee of tax fi. fas., the validity of the transfer being, at issue.
8. On demurrer to a petition, the petition must be construed most strongly against the petitioner.
(a) Allegations that the owner gave to an officer having authority to collect the taxes for a stated year “a check” for a stated amount “in settlement for taxes due for” that year, and that “the receipt for that year was delivered to the said” owner, “being a receipt in full for that year’s taxes,” was not an allegation of payment of that year’s taxes.
(5) Allegations that petitioner’s attorney “was informed” by the tax-collector that the county authorities had “credited county taxes for” a stated year “due” by the owner “as paid in full,” and “that the information furnished is, to the best of” petitioner’s “knowledge and belief, true and correct,” do not amount to an allegation of payment of the taxes for that year.
9. Applying the foregoing principles, the judge did not err in dismissing the case on general demurrer to the petition.
Executions, 23 C. J. p. 562, n. 34; p. 767, n. 59; p. 812, n. 67 New.
Judicial Sales, 35 C. J. p. 79, n. 41.
Pleading, 31 Cye. p. 81, n. 9, 10.
Taxation, 37 Cye. p. 1140, n. 12; p. 1142, n. 22, 23; p. 1143, n. 27; p. 1144, n. 33.
Judgment affirmed.