187 Ga. 40 | Ga. | 1938
On December 10, 1934, an execution for State and county taxes, dated December 20, 1927, against J. A. Roland, was levied on realty as property of the defendant in fi. fa. A-claim was filed by Mrs. Katie Mae Hardin. At the conclusion of the evidence on the trial of the issue the claimant moved that the court dismiss the levy, which motion was overruled. The claimant then moved that a verdict be directed that the land levied on was not subject, on the ground that under the evidence, considered in the light of the Code, § 110-511, the claimant had acquired title freed of the lien of the execution. This motion was sustained; verdict and judgment in favor of the claimant were entered. The tax-collector’s motion for new trial, in which error was assigned on the direction of the verdict, was overruled, and he excepted. The claimant by cross-bill of exceptions assigned error on the refusal to dismiss the levy.
As a reversal of the judgment complained of in the cross-bill of exceptions would render nugatory the judgment on which error is assigned in the main bill, it is in order that the assignments of error in the cross-bill be first decided. The motion to dismiss the levy was on the following grounds: “1.. That, as matter of law, the levy was excessive. 2. That the tax fi. fa. should not have been levied on the land levied on, which was conveyed by defendant to claimant, before seizing and exhausting property of the defendant that had not been so conveyed. 3. That if said fi. fa. was to be levied on land that had been conveyed by defendant to claimant, there was included in said conveyance vacant land that should have been seized -and exhausted before levying on the im
The second ground of the motion, that the fi. fa. should not have “been levied on the land levied on, which was conveyed by defendant to claimant, before seizing and exhausting property of the defendant that had not been so conveyed,” is entirely without' merit. The taxing authorities are not required, in the collection of taxes, to limit the levy to property of the defendant in execution which has not been alienated: at the 'time of the levy. “Taxes to be paid before other claims. Property always subject. —Taxes shall be paid before any other debt, lien, or claim whatso
In an amendment to the claim filed by Mrs. Hardin it was alleged: '“That said fi..fa. should not proceed, for the reason that it is barred by the statute of limitations, and is inoperative against the property of claimant levied on, for the reason that she bona fide and for a valuable consideration purchased! the property levied on, and has been in the possession thereof for more than four years prior to the purported levy of said fi. fa.” The order of the judge in ruling on the motion for a directed verdict recited: “Claimant has moved that a verdict holding the land levied on not subject to said tax execution be directed on the ground that under the evidence in the said case, considered in the light of the provisions of section 5950 of the Code of 1910 [Code of 1933, § 110-511] claimant has acquired title to said land freed of the lien of said tax execution; and said motion is hereby sustained solely on said ground.”
Counsel for the tax-collector contends that by the quitclaim deed from Eoland Mrs. Hardin acquired only the equity of tire grantor in the property conveyed; that the legal title was already in her under a previous security dieed executed to her by Eoland; that as the evidence conclusively showed thát the security was worth less than the debt, she received nothing by reason of the quitclaim deed; and that Code, § 110-511, has no application in this case. It appears from the evidence that Eoland owed Mrs. Hardin a debt of about $21,000, secured by a deed conveying certain real estate and a stock of merchandise worth $5000 or $6000, that she surrendered to Mm the notes she held evidencing Ms indebtedness, and surrendered to him the stock of goods, in consideration of his quitclaim deed to the land embraced in' her security deed, which land was valued at from $8000 to $15,000. We think that under the
In Rodgers v. Elder, 108 Ga. 22, 25 (33 S. E. 662), it was ruled: “On the trial of an issue as to whether one is a bona fide purchaser of property from a defendant in fi. fa., as contemplated by section 5355 of the Civil Code, it is not error for the judge to refuse to charge the jury to the effect that if the purchaser had knowledge of the existence of the judgment at the time he bought the property and promised the defendant in fi. fa. to pay the judgment, his possession of the property for four years did not release it from the lien of the judgment; it hot affirmatively appearing in such trial that the promise was made prior to or cotemporaneously with the purchase, nor that there was 'any consideration for such promise^ and it further not appearing that the plaintiff in fi. fa. ever knew of or acted upon the same. The fact of such knowledge of the existence of the judgment is a matter for the jury to consider, under all the circumstances of the case, in determining whether or not the purchase was in good or bad faith.” In the opinion it was said: “Whether or not a knowledge on the part of a purchaser of the existence of a judgment would per se, under section 5355 of the Civil Code, prevent a vendee of property from being a bona fide purchaser thereof, so as to release it from the lien of
The act approved October 13, 1887 (Ga. L. 1887, p. 23), was codified §§ 890 and 891 in the Code of 1895, §§ 1147 and 1148 in the Code of 1910, and §§ 92-7701 and 92-7702 in the Code of 1933. These sections were considered by this court in Central Railroad & Banking Co. v. Wright, 124 Ga. 596 (53 S. E. 251). One of the questions for decision was whether the State, by waiting for more than seven years to issue tax executions after such executions could lawfully have been issued, could then issue them. The Code sections cited are as follows: § 92-7701 [§ 890] : “Tax execution dormant, when. — All State, county, city, or other tax executions, before or after legal transfer and record, shall be enforced within seven years from tbe date of their issue; or within seven years from the time of the last entry upon the tax execution by the officer authorized to execute and return the same, if said entry is properly entered by said officer upon the execution docket and books in which said entries are required to be made in cases of entries on executions issued on judgments.” § 92-7702: “Laws as to judgments applicable to tax executions. — All laws in reference to a period of limitation as to ordinary executions for any purpose, or to the length of time or circumstances under which they lose their lien in whole or in part, are applicable to tax executions.” The ruling of the majority of this court was: ‘•“The act of 1887 (Pol. Code, §§ 890, 891), when construed as a whole, provides a statute of limitation against the right of the State and its subordinate public corporations to enforce a lien for taxes. Such a lien is barred not only by a failure to have the proper entries made
Even if Mrs. Hardin acted in the utmost good faith in purchas.ing from Eoland the land involved in this levy, this purchase of itself did not relieve the land from liability to be subjected to the tax execution against Eoland. The effect of the alienation by Bolamdi was to make it incumbent upon the tax-collector to have
We conclude that the court erred in directing the verdict for the claimant, inasmuch as it can not be said that a verdict in her favor was demanded. It follows that the court erred in overruling the motion for new trial, wherein error was assigned on the direction of such verdict.
Judgment reversed on the main hill of exceptions, and affirmed .on the cross-Jill.