53 Ga. App. 454 | Ga. Ct. App. | 1936
Mrs. Mathilde B. May brought suit against W. L. Simmons and Mrs. W. L. Simmons, in which she made this case: The defendants have damaged the plaintiff in the sum of $750. On March 1, 1929, plaintiff loaned to Mrs. Simmons $2250, and received her note of even date, maturing in five years, to secure the payment of which she executed to plaintiff her deed conveying certain premises, 955 Deckner Avenue, Atlanta, which deed contained a provision whereby the grantor was to pay all taxes against the property. The defendants were acquainted with such provision in the deed, and knew that Mrs. Simmons was obligated to pay the taxes on the property. On June 4, 1935, Mrs. Simmons was indebted to plaintiff on the note for $2250 principal, with interest, and the security deed was in force and effect. W. L. Simmons for himself or as agent for his wife, returned this property for 1934 taxes to the Oity of Atlanta in his own name, and Mrs. Simmons did not return the same. The defendants failed to pay the taxes, and on June 4, 1935, said city sold said premises for non
1. When property is sold under a ii. fa. for taxes, and there is any excess after paying taxes, costs, and all expenses of the sale, it shall be immediately paid to the person authorized to receive it. Code of 1933, § 92-8106.
2. Fraud by one, accompanied with damage to the party defrauded, in all cases gives a right of action. Code, § 105-301. Private duties may arise or flow from relations created by express contract. The violation of any such specific duty accompanied with damage, gives a right of action. § 105-104. The violation of some private obligation, independent of contract, by which damage accrues to the individual, is a tort for which an action lies. § 105-101. The tort is dependent on the contract only to the extent necessary to raise the duty. Wolff v. Southern Ry. Co., 130 Ga. 251, 257 (60 S. E. 569); Louisville &c. R. Co. v. Spinks,
3. Where one who creates a lien upon his property as security for debt thereafter permits the same to sell for delinquent taxes accruing after the creation of the lien, by which sale the security is lost to the lienee, the lienee is entitled to any excess.remaining in the hands of the tax authorities, after payment of the taxes, costs and expenses of sale (61 C. J. 1213; McDuffee v. Collins, 117 Ala. 487, 23 So. 45; Worcester v. Boston, 179 Mass. 41, 60 N. E. 410; Sutherland v. Brooklyn, 156 N. Y. 605, 51 N. E. 433; Brockway v. Humphrey, 4 Neb. (Unof.) 403, 94 N. W. 625); and as against the lienee the lienor has no right to this excess, even were the security returned for taxation and assessed in the name of the lienor by reason of a statute directing the excess from any tax sale to be “paid to the person authorized to receive the same.” Particularly is this true where the lienor has contracted to keep the taxes on the property paid. The fact that the property was improperly returned for taxation in the name of the husband of the lienor and the tax assessed against it in his name, would not render the husband the “person authorized to receive” such excess from the tax sale.
4. The petition set up a cause of action against the defendants. It was the duty of the defendants to preserve and protect the premises conveyed to plaintiff to secure her debt, and not to suffer the same to be sold for taxes. The plaintiff lost the security for the money owing to her by the defendant wife, which was past due, as a result of the wrongful acts of the defendants in returning the property for taxation in the husband’s name, in failing to pay the taxes, in allowing the property to sell for taxes, and in taking charge of the proceeds of the sale over and above the amount required for taxes and costs, and converting the same to their own use. Until the payment of the debt the legal title to the property was in the plaintiff, and this money represented what remained of plaintiff’s security and belonged to her after the tax sale. Under the facts of this case it was not necessary that plaintiff first endeavor to collect the amount of the debt represented by the note out of the wife by an action thereon, or to allege that she paid any
Judgment affirmed.