Roser v. Georgia Loan & Trust Co.

| Ga. | Jun 2, 1903

Lamar, J.

In 1892 land worth between $600 and $1,000 was by Corbin conveyed as security for a'debt of $500. In May, 1897, the property, having been levied on under a city tax execution for $9.90 against Corbin, was bid in by Hight for $40. He received a tax deed, but did not enter. Corbin having made default in July, 1897, the property was sold under a power of sale in the security deed, and bought by the Georgia Loan and Trust Company, who contracted to sell the same to Brooks, giving him a bond for titles therefor. Brooks entered into possession, and subsequently transferred his bond to Lizzie Roser. She entered into possession, assumed the indebtedness of Brooks to the Georgia Loan and Trust Company, and paid Brooks $200 in cash, out of which he agreed to pay off the taxes, including the tax title held by Hight. Brooks paid Hight, and, instead of having the deed • cancelled, requested him to make a quitclaim deed to Lizzie Roser. This he did, though the time for redeeming had expired. This deed was duly recorded, and by successive conveyances under this tax sale the property was conveyed to the claimant, her brother-in-law, who was in Anniston, Alabama. He made no examination of the title, but says that he got an attorney to look at the title and see whether it was good or not; though it does not appear what the report of the attorney was. The claimant relied on possession under the tax title; but the plaintiff in fi. fa. insisted that the tax deed was void, it appearing that property worth between $600 and $1,000 had been levied on to satisfy a tax fi. fa. for $9.90; that the lot was 100 by 163. feet, and was susceptible of division (though there was some evidence tending to show' that its value would be less when divided); that'by cutting the property into 50-foot lots the house would have been on one, accessible only from the front, and there would have been a vacant lot on the corner, worth $150. An inspection of the record would have shown that there were two outstanding titles, one the tax title in Lizzie Roser, and the other the-title in the Georgia Loan and Trust Company under the Corbin power of sale. This with the prior possession of Brooks, and the fact that Lizzie Roser had entered after him, may or may not ordinarily have been sufficient to put the purchaser, Joseph Roser (the claimant), on inquiry; but when it appeared that the property itself was a city lot with a residence thereon; that there was a strip of 50 or 60 feet of vacant land on the corner, and that the whole lot, 100 by 163 feet, had been levied on and sold in bulk, without effort to subdivide, to satisfy a tax execution for less than $10, the purchaser was put ou notice of the invalidity of the sale because made under an excessive levy. The answer of the claimant to this proposition is that no one except Corbin or his privies in estate could attack the tax deed for that reason.

Not only Corbin, but all of those claiming under him, as privies,, including the plaintiff in fi. fa., who bought under the power in the security deed, could complain that the tax sale was void. Ryan v. Mortgage Co., 96 Ga. 322; Pool v. Morris, 29 Ga. 374. The tax sale was void because of the excessive levy (Brinson v. Lassiter, 81 Ga. 40; Forbes v. Hall, 102 Ga. 47; Hobbs v. Hamlet, 106 Ga. 403); and the fact that the lot when divided may have been worth less than the whole undivided will not prevent it from being void. It is better that the land should have been somewhat-damaged by a division, than that the owner should lose property worth $600 or more in payment of a tax fi. fa. for less than $10. Where the character of the estate would be impaired or damaged by a subdivision, the entire property must be seized and sold. Houses can not be divided, mills separated from water power, or farms from public highways; but a slight detraction in value, arising from a division^ will not give validity to a tax sale, otherwise void, because the property is sold in bulk under an excessive levy. The more excessive the levy, the more certainly is the sale void, and therefore the less will be the price realized. The courts, therefore, are of necessity bound to apply the rule in this class of cases. Often the property is sold for a small tax without notice to those beneficially interested. The very fact that the tax sale defeats all prior liens imposes upon officers the exercise of a sound discretion, in making these levies. They are allowed a liberal and generous margin; -they can take what is amply sufficient; but when they go beyond that, and make a levy that is excessive, and sell in bulk, the purchaser gets no title as against the owner or his privies in estate.

Judgment affirmed.

By five Justices.