1. Where in a claim case the plaintiff in an ordinary fi. fa. introduces in evidence the execution, with entry of levy showing that the defendant in execution was in possession of the property at the date of the levy such evidence makes a prima facie case in favor of the plaintiff in fi. fa Code, § 39-904; Burt v. Rubley, 113 Ga. 1144 (39 S.E. 409); Nolley v. Elliott, 50 Ga. App. 382 (3) (178 S.E. 309). Where in such case the execution was against an administrator, and the entry of levy on the property claimed stated that it was levied on as the estate of the intestate "in the hands" of the administrator, naming them, such entry showed that the defendant in execution was in possession at the time of the levy, and thus shifted the burden of proof to the claimant.
2. "One who is bound to pay the tax on property can not strengthen his title by purchasing at a tax sale; such purchase shall be treated as payment."
Code, § 92-8105. The rule applies with the same force where another person purchases at the tax sale and after expiration of the period of redemption sells to one who was under a duty to pay the taxes. Title of the latter is not strengthened, but is treated merely as redeemed, with respect to those to whom such duty was owed. Burns v. Lewis, 86 Ga. 591
(13 S.E. 123); Bourquin v. Bourquin, 120 Ga. 115 (47 S.E. 639); Templeman v. Williams, 166 Ga. 60 (142 S.E. 534); Horton v. Johnson, 187 Ga. 9 (2) 11 (199 S.E. 226); 61 C. J. 1305, § 1826; 26 Rawle C. L. 412, § 370.
3. "Upon the death of the owner of any estate in realty, which estate survives him, the title shall vest immediately in his heirs at law, subject to be administered by the legal representative, it there is one, for the payment of debts and the purposes of distribution." Code, § 113-901.
(a) Under this statute, an heir at law inherits land subject to any burden or duty that existed with respect to it against the intestate, or that may later arise against the administrator, where an administrator is appointed.
(b) While the tax claim did not constitute a personal liability against the heir at law, yet his relation to the property was such that as between him and the plaintiff in fi. fa., who was a creditor of the estate, the taxes were chargeable to him "morally," to the extent that as to such creditor he could not better his title by purchasing either directly or indirectly at a tax sale. Burns v. Lewis, supra. See 50 C. J. 784, § 61.
4. The court did not err in directing the verdict in favor of the plaintiff in fi. fa., finding the property subject, nor in refusing a new trial.
No. 13749. JUNE 20, 1941. REHEARING DENIED JULY 10, 1941.
The facts are sufficiently indicated in the headnotes. As between the plaintiff in execution and the administrator, it was the duty of the latter to pay the taxes during the course of administration; and the title to the realty having vested in the heirs at law subject only to administration for the payment of debts and distribution, such duty as to payment of taxes extended, at least morally or equitably, to the heirs at law, since the administrator was a mere trustee holding the land for their benefit. While such burden would rest equally upon all of the heirs at law, the claimant being one of several, this fact would not exclude the principle stated in the Code, § 92-8105. See §§ 85-1004, 85-1005; 54 A.L.R. 896; 85 A.L.R. 1537. Accordingly, as against such plaintiff in execution, the claimant could not strengthen his title by purchasing the property at a tax sale; nor could he do so indirectly
by purchasing from another person who had purchased at such a sale; and this is true even though he purchased from the latter after the period of redemption had expired. The conclusion here reached accords with the rulings in
Union Central Life InsuranceCo. v.
Bank of Tignall,
182 Ga. 233 (
185 S.E. 108), and
Caffey v.
Parris,
186 Ga. 303 (2) (
197 S.E. 898). Nor is it contrary to the decision in
Edwards v.
Hall,
176 Ga. 632
(
168 S.E. 254), where it appeared that an owner of realty conveyed different estates therein to different grantees, the legal title to one as security for a debt, and the remaining equity to another. It was held in effect that as between a remote grantee of such equity and the holder of the security deed, there was no duty upon either with respect to the other to pay taxes that accrued before execution of the security deed, that is, before either estate was conveyed by the tax debtor, and consequently that the principle stated in the Code, § 92-8105, was inapplicable. It is thus seen that the facts of that case were materially different from those here under consideration, and that the decision is not authority for the present claimant.
The evidence demanded the verdict as directed by the court in favor of the plaintiff in fi. fa. and against the heir at law as claimant. There was no merit in either of the special grounds of the motion for new trial, and the court did not err in overruling the motion.
Judgment affirmed. All the Justices concur.