Shackleford v. Hooper

| Ga. | Sep 15, 1880

Crawford, Justice.

The record in this case presents several questions for our judgment:

t. Where a judgment is rendered in favor of R. P. Hooper and his wife, for the use of L. P. Hooper, and the fi. fa. issued thereon is in favor of R. P. Hooper and Louisa P. Hooper, is that such a material variance as to render it illegal?

This suit was brought and this judgment was rendered for-the benefit of the usee, L. P. Hooper, who is the real plaintiff in the case, and the real party at interest; shall, therefore, that character be maintained from the commencement of the action up to and including the judgment and then dropped when the final process is reached ? We think not. If it were material in the beginning, it becomes none the less so in the ending, and it should have been preserved. Code, §3636.

The name of a nominal party may be stricken, and if a legal right remain in the usee the action may be continued. 56. Ga., 554; 59 Ga., 644. But in no case does it appear that the usee may have his rights impaired by omitting to preserve his legal relation to the same.

2. The next question made is, whether the recitals in a tax deed are not prima evidence to support the same.

That would depend in our judgment upon what the recitals were. To say that all the recitals in such a deed would be good, would be to commit the rights of parties to the hands of many very unskilled and unlearned men ; ©n the other hand, to say that none were good would be to change what we understand to have been the rulings of this court.

Our judgment therefore is, that they are prima evidence of the acts of the officer himself, such for instance as the advertisement, place, hours of, and manner of sale, but the authority to sell stands upon a different footing and must be proven. 53 Ga., 455 ; 55 Ib., 573.

3. Another assignment of error is the charge of the judge, that if at a tax sale a large amount of property is sold, disproportionate in value to the amount of taxes due and the amount for which it sells, then the law presumes it to be null and void, and it is incumbent on the party claiming under it, to show that it was a bona fide salt and made in terms of the law.

Whilst it has been the purpose of this court to prevent and restrain officers of this class from gross, wanton and excessive levies upon property for taxes, yet we cannot find where the rule of law laid down here has been carried to the extent stated by the judge below. The value of property sold for taxes in a large majority of cases, must of necessity far exceed the amount of the fi. fa., or even the amount for which the same is sold. There are but few instances where such property at these sales brings more than the taxes due and the accompanying costs, so that to hold that the law pursumes all such sales null and void, would be extending the principle beyond the limits of the law, and this we cannot do.

The other questions made are unimportant in the view which we have taken of this case.

Judgment reversed.