| Ga. | Dec 19, 1882
Upon the trial, the claimant put in evidence the ordinances of the city of Augusta authorizing the assessment, levy and collection of taxes, and the sale of property under tax fi. fas. He next offered the sheriff’s deed and the tax fi fas. on which it was based, to which plaintiff in fi. fa. objected until it was first shown that the power to issue said fi. fas., make said entries and execute said deed existed under the law and under the ordinances of the city of Augusta. The objection was overruled, and to this ruling the plaintiff excepted.
We hold that when the claimant showed the ordinances of the city of Augusta authorizing the assessment, levy and collection of taxes, and the authority to issue executions against defaulting tax-payers, the fi.fas themselves with the entries thereon, as well as the sheriff’s deed were properly admitted.
We think that this testimony fully met the requirements necessary to authorize the introduction of the sheriff’s deed and fi. fas., showing the sale of the land for the non-payment of municipal taxes.
In the 8th Ga., 479, where land was sold, under an ordinary execution against the owner, in April, and again sold in the following December, under a junior fi. fa. for taxes
In the 25th Ga., 103, where there .was a mortgage on real estate for about $1,900.00, made the year before the tax execution issued, and the levy was not upon the equity of redemption, but upon the whole property, the same being two tenements worth $6,000 or $7,000, to satisfy a tax fi. fa. for less than $100, it was held that the sale was void, and that the lien of the mortgage was not divested.
Such, of course, must have been the effect of a void sale, and, certainly in such sale, the title to the property stood unaffected thereby, and this without reference to the rights of the mortgage creditor. But in so far as the rights of the mortgage creditor were concerned, it is to be noted that the tax fi. fa. in that case was in favor of the city of Atlanta, whose charter provided that tax executions should have a lien upon property only from the date thereof, and the date of the tax fi. fa. was subsequent to the date of the mortgage, so that, according to the opinion of Chief Justice Lumpkin, the equity of redemption was all that really was in the mortgagor subject to sale under the city tax fi. fa. against him.
The decision, however, does not seem to rest alone upon that ground, but also upon the liability of the mort. gagee to pay the tax, under the law as it existed at that time, whenever the same was not paid by the mortgagor. The section of the tax law, so providing, was set out in full in the opinion, and in it occurs this passage : “ And in case any person who has mortgaged estate, real or personal, shall neglect or refuse to pay the tax for the same, the mortgagee shall be liable to pay the same.” This provision of the law, however, is no longer of force, for in the revision of this section of that act, the codifiers have confined this liability alone to mortgagees holding mortgages made to avoid the payment of taxes. Had it
If, however, the tax fi. fa. had been in favor of the state, it would have been superior to any other debt, lien or claim whatsoever, and the whole property would have been subject, if necessary, to the payment of the tax. Code, §812.
Taxes due the state are not only against the owner, but against the property also, and that without reference to judgments, mortgages, sales, transfers or incumbrances of whatsoever nature or effect. The only concern as to an owner at all, is merely to know against whom the assessment is to be made, whilst the tax itself, and the lien therefor is against the property. The state’s lien for taxes overrides all others, and follows the-property into the hands of whomsoever it may go.
If the property itself is subject, it must pay the taxes for which it is liable, regardless of the interest of any and all persons therein.
Having then this superiority over every other interest and claim, whenever it is sold for the payment of taxes due the state, the purchaser gets a title subject only to the right of redemption, and if not redeemed within the time prescribed by law, it becomes as absolute as a grant from the state could make it. We hold that the levying officer is bound to levy and sell the property in such way and to the extent only that may be necessary to discharge the taxes due and costs. Hence he may levy on a part of the property, or the whole ; and if it be encumbered by a mortgage, and in his judgment the equity of redemption will meet the tax liability against it, then he may levy and sell the equity of redemption alone, but if in his judgment that will be insufficient, then he may levy upon the whole estate regardless of the mortgage, and the purchaser at the sale will get just exactly that which is sold, whether it be the equity of redemption or the whole
If the sheriff has power only to sell the equity of redemption, where there is a mortgage of older date than the day on which the tax liability begins, and that mortgage should be for an amount greater than the value of the property, then there would be in reality nothing to sell, and a return of nulla bona would necessarily follow. No tax fi. fa. could issue against a bona fiae mortgagee, for there is no authority of law now to charge him with the payment of the taxes. His mortgage is but a lien, and the title is in the mortgagor. A tax fi. fa. can no more issue against a bona fide mortgage creditor because of his lien on the property than it could against a judgment creditor because of his lien.
The burden of taxes upon property com.es with each succeeding year ; of this important fact all persons must take due notice, and creditors with liens are as fully charged with that notice as are the holders of titles. They stand upon no better basis than owners, and as their rights are in like jeopardy, they are bound to protect them in like manner. If this be not so, all mortgages antedating the day of assessment of property give a prior if not a higher lien, without the authority in the tax collector to sell except subject thereto. This rule of law would answer very well where the value of the whole estate exceeded the mortgage liability by an amount sufficient to discharge the taxes. But where the mortgage liability was greater than the value of the property, there would be nothing to sell. Indeed such a construction of the law would leave no existing remedy by which taxes could be collected upon property thus heavily mortgaged. The equity of redemption in such cases of course would be valueless.
If we are right, then, that the lien of the mortgage is divested, if the property sold was for taxes due the state and not redeemed, the same result follows as to taxes due
And we have seen, as stated above in the case cited from the 8th Ga., 479, that where there was a contest between an absolute bona fide purchaser at sheriff’s sale, and the purchaser at a tax sale, the latter had the superior title. Whether the taxes be due for one year, as in that case, or for five, as in this, does not and cannot change the governing legal principle. If, therefore, the lien of the judgment creditor, and the title of the purchaser at a fair sale by the sheriff must yield, there can exist no legal reason why the mortgage lien should not likewise.
If it does not, we say, in the language of Justice Nisbet, in the case just cited, “then the state has devised an ingenious piece of statutory mechanism for the purpose of entrapping her citizens.”
The lien for taxes exists by public law; the right to sell property for their payment exists by public law; the right of redemption within a specific time exists by public law ; that the failure to redeem perfects the title in the purchaser, exists by public law ; and all persons failing to protect their rights according to law must abide its judgments when pronounced against them for such failure.
Judgment affirmed.