54 S.E.2d 592 | Ga. | 1949
Lead Opinion
Under the decisions of this court, where nothing further appears, a purchaser at a sale under a tax execution in personam against a life tenant acquires only the life estate, but where, as here, it further appears that the life tenant is in possession, that the whole property was levied upon, and that the execution embraces only the taxes upon the specific property, the purchaser acquires title to the fee, and the whole property, including the remainder estate, as well as the life estate, passes.
Upon the trial, by evidence and stipulation of facts it was made to appear that the defendant in the tax execution owned no other property in the City of Elberton during the period covered by the tax claim, and that this house and lot were the only property on which the city assessed taxes against the defendant for that period, that the tax sale and the marshal's deed were all regular and legal in form, and that the levy was against the fee and recited that the defendant was in possession of the property. A verdict in favor of the defendant was returned, and the petitioners filed a motion for new trial, which was later amended, and the exception here is to the judgment overruling that motion.
"All taxation shall be uniform upon the same class of subjects, and ad valorem on all property subject." Article 7, section 2, paragraph 1, Constitution of 1877 (which provision of the Constitution was of force at the time of this assessment and sale). "Taxes shall be charged against the owner of property if known, and against the specific property itself if the owner is not known." Code, § 92-110. This court held in Burns v.Lewis,
But it is clearly shown in the present case that the defendant in execution under the terms of the will had only a life estate in the property of which she was in possession at the time the tax assessments in question were made and also when the levy and sale took place. It nowhere appears that the taxing officials at any time had knowledge of this limited interest of the defendant in fi. fa. "Life tenants, and those who own and enjoy *646
the property, shall be chargeable with the taxes thereon." Code, § 92-110. This court has repeatedly held that where property is sold under a tax execution against a life tenant in personam only the life estate passes to the purchaser. Roddenberry v.Simpson,
It has been argued that the basis of the decisions holding that only a life estate passes at a tax sale under an execution in personam against a life tenant, is that, since the life tenant had no title to the remainder interest, the only title that could pass to the purchaser would be such title as the defendant had, and consequently the purchaser would acquire only a life estate. This reasoning is completely refuted by the decisions of this court holding that the purchaser acquired title to the fee, although the defendant in fi. fa., who was in possession, had no interest whatever in the property. In the present case the defendant, who was the purchaser at the tax sale, saw that the defendant in fi. fa. held possession of the property being sold, and the levy was upon the whole property under the execution for taxes only upon this specific property, and she was justified in assuming that she was acquiring the fee, subject only to the right of redemption. Obviously there is involved an element of fiction in any case where the purchaser acquires and the owner is divested of the title at a sale under an execution in personam against a stranger to the title, but as to taxes the whole property is liable; and for the taxing authorities to treat the person in possession as the owner for the purpose of subjecting the property to the payment of its share of taxes, is not fictional but is a reasonable means of enforcing the law. It would dangerously imperil the support of government if the collection of property taxes was made dependent upon the ability of the taxing official, who is unfamiliar with title law, to acquaint himself with wills and other instruments by which different persons are given separate interests in specific property. This principle is emphasized by the further provision of the Code, § 92-110, that, "While the public may treat property as belonging either to the maker or the holder of a bond for title when the latter is in possession," yet as between the parties liability for the taxes shall be fixed against the one enjoying the use. Unquestionably the holder of a bond for title has no title and is not the owner of the property embraced in such bond, yet this Code section authorizes the *648
taxing authority to proceed against him, provided only that he is in possession. See Morgan v. Burks,
While, as pointed out above, this court, in Clower v.Fleming, supra, and Dooley v. Bohannon, supra, asserted that, if it is shown that the tax execution in personam against one who is the life tenant is for taxes on specific property only, a sale thereunder passes the fee to the purchaser, yet we think that another and perhaps more solid basis for so holding would be that the life tenant was in possession, and thus was apparently the owner of the whole property. It could be fairly demonstrated that, even where such an execution embraces taxes upon other property of the life tenant, a sale thereunder, when the life tenant is in possession, would divest the remainderman and convey the fee to the purchaser, but the decisions above cited preclude such a holding. If the life tenant fails to pay his taxes, one execution and only one may be issued against him, and this would include taxes on all of his property. The levying officer would be entitled to levy such an execution upon any item of his property, and this would include the right to levy upon the property in which he has only a life estate. If the remaindermen or other parties having an interest in the property thus levied upon desire to protect their interests as the law enjoins upon them, as ruled in Verdery v. Dotterer, supra, then an effective means of accomplishing this would be to pay the taxes and require a transfer of the execution to themselves, and then direct the levying officer to levy upon the other property belonging to the defendant in execution. This procedure would afford full protection to all persons having an interest in the property and would free the taxing authorities from unnecessary shackles and hindrances in the collection of taxes. It would also remove doubts as to the title of the purchaser at tax sales. For all of the foregoing reasons the judgment overruling the motion for new trial must be affirmed. *649 Judgment affirmed. All the Justices concur, except Atkinson,P. J., who dissents.
Dissenting Opinion
"Where land is held by a life-tenant, and taxes are assessed against him and executions issued in personam only, a sale under the levy of such executions passes only the life-estate." Howell v. Lawson,