149 Ga. 286 | Ga. | 1919
Lead Opinion
Judgment reversed.
Concurrence Opinion
specially concurring. In McArthur v. Peacock, 93 Ga. 715 (20 S. E. 215), it was said: “One who was not in possession of land when the same was sold for State and county taxes by the sheriff, and who has no interest in the land as owner, or as being in privity with or a creditor of the owner, but who is a mere stranger to the title, has no right to attack the sale because of excessiveness in the levy or failure to advertise legally, or for other irregularities; and the burden of proving ownership, ox the necessary privity with the owner, is upon the person making the attack.” Applying this ruling to the facts of the case under consideration, it must be held, as ruled in the second division, that the defendant was not entitled to attack the sheriff’s deed, and the judge committed error in rejecting the deed. The tax sale was of unreturned wild land, made in 1894 for taxes due in 1893. The law on that subject was then as now: “When property is assessed for taxes which has not been returned by any one, as soon as assessed the tax-collector shall at once issue an execution against it for the amount due and costs, and the sheriff shall advertise it for sale in some public gazette ninety days before the day of sale, and if by said day the taxes are not paid, it shall be sold. Provided, renting or hiring will not bring the requisite amount. Whatever overr plus there may be shall be paid over to the ordinary as a part of the educational fund, with a statement of the property and account of sales, subject to the claim of the true owner within four years.” Civil Code (1882), § 897; Civil Code (1910), § 1168. Under this law the sheriff did not have jurisdiction to sell the land until after he had advertised it in some public gazette for at least ninety days. The authority to him was to sell after such advertisement, “if by said day the taxes are not paid.” The owner had until the day of sale in which to pay. It would require a strained construction of the statute to hold that the sheriff had authority to sell within the time in which the owner of the property had the right to pay the taxes and prevent the sale. A sale of unreturned wild land for taxes differs from other tax sales. In the case of wild lands the