Smith v. Shackelford

163 Ga. 835 | Ga. | 1927

Lead Opinion

Russell, C. J.

(After stating the foregoing facts.)

, We think the court correctly overruled the demurrer to the petition. The defendants demurred upon the grounds that the declaration sets forth no cause of action, that there is no equity in the petition, and that the plaintiffs owe a certain amount as taxes and can not make the attack upon the assessment. The defendants maintain that the tax which is due by the plaintiffs ■ must be paid before they can contest the legality of the tax assessment. Paragraphs 11 and 12 of the petition are demurred to as irrelevant to the relief prayed.

The declaration, even if it required amendment in some particulars, was certainly sufficient to withstand a general demurrer. It is alleged that the return made by the plaintiffs was raised by the county board of tax-assessors without notice to the plaintiffs, and for that reason the assessment and the fi. fa. issued thereon is void, and yet the sheriff is proceeding to advertise the property to be sold under a levy which is also void because of uncertainty of description of the land levied upon. It is averred that if the property levied upon is sold, the petitioners will be damaged by the sale placing a cloud upon the title of the remaining portion of lot No. 217. The petition would be immune from attack as not requiring equitable relief for the purpose of preventing a cloud upon petitioners’ title to the remainder of lot 217, which was not subject to levy, if there were no other allegations in the petition requiring the intervention of equity. Under these allegations it was not necessary for the plaintiffs to pay the full amount of the fi. fa. before they would be permitted to test its'legality. The genera] rule of equity is that when a portion of an indebtedness is admitted tó be due, the'petitioner can not ask the aid of equity under any circumstances unless he has tendered or paid what he admits to be due. In the present case it does not appear from the petition that the plaintiffs admit they owe any tax under the fi. fa. The substance of the statement in the petition is that the plaintiffs owe $1,140 of taxes for the year 1920; but they contend, for the reasons stated as to the invalidity of the fi. fa., that they are not indebted in any amount under the execution.

There was no error in the exclusion of the evidence with reference to the actual value of the land owned by the plaintiffs and which was subject to tax in Wilcox County, as illustrative of whether the plaintiffs made a fair return or failed to do this. Under the act of 1913 (Ga. L. 1913, p. 123), the validity of the fi. fa., in a case where the valuation fixed by the taxpayer in his return is assessed and changed by the county board of tax-assessors, and where it is alleged that no notice of the change was given, depends upon only three questions: (1) Whether a return was made. (2) Whether the assessment was raised by the county tax-assessors. (3) Whether before the final entry of the assessment the taxpayer had been notified as prescribed by law. Section 6 of the act of 1913, supra, provides: “When any such corrections, changes, and equalizations shall have been made by said board, it shall be the duty of the board to immediately give notice to any taxpayer of any changes made in his returns, either personally or by leaving same at his residence or place of business, or, in case of non-residents of the county, by sending said notice through the United States mails to his last known place of address.” The evidence is undisputed that T. J. and F. C. Shackelford are residents of Clarke County, and that 6. 0. Shackelford is a resident of Wilcox Comity. It is provided that only in case of non-residents of the comity can notice be given by mail. As to the residents of the comity there is no provision for mailing the notice of change in the assessment, but such notice must be served upon the resident taxpayer, either personally or by leaving same at his residence or place of business. G. 0. Shackelford testified that he had received no letter, but this is entirely immaterial. The witness for the defendants did not testify that written notice was given by mail to either T. J. or F. C. Shackelford. The case therefore narrowed itself to a question of notice or no notice of the change in the assessment. The question as to the value, of course, would throw no light on whether there was in fact a return made, and of course this is essential in order to give the board of county tax-assessors any power to assess at all; for if a taxpayer is a defaulter, the law provides that the tax-receiver shall appraise his property at a fair valuation and doubletax the taxpayer, who can only be relieved by action of the ordinary. Each member of the board of county tax-assessors who testified swore that they had before them a “return,” and that they promised G. 0. Shackelford to consider his “return” after dinner the day he appeared before them, and that they raised “the return” not only on their own account, but 5 per cent, more, upon order of II. J. Fullbright, State tax-commissioner. With this undisputed evidence in the ease, we think the verdict directed by the judge can well be said to have been demanded by the evidence.

Judgment affirmed.

All the Justices concur, except

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Dissenting Opinion

Atkinson and Hiñes, JJ.,

dissenting. Whether the court erred in directing the verdict depends on whether the evidence demanded a finding that a “return” for taxation had been made by the property owners. No written return was introduced in evidence, and the testimony on this subject was opinion evidence and equivocal, and did not demand a finding that a “return” for taxation had been made.