83 Ga. 198 | Ga. | 1889
The plaintiff* in error relied in argument upon the sole ground that the court erred in excluding the tax fi. fas., the entries thereon and the sheriff’s deed. These fi. fas. were issued, one of them for the State and county taxes of 1877, the other for the State and county taxes of 1878; one for $72.54, the other for $70.24. They were each levied by a constable, and the shei’iff’s deed purported to be made in consequence of a sale under these fi. fas. and two others, the other two, as recited in the deed, being for taxes of 1879 and 1880. The evidence was excluded on the ground that the constable had no authority to make the levy, there being upon the fi. fas. no entry or return that no personal property was to he found.
The sharp and clear cut issue thus made is, whether a constable can levy upon land by virtue of a tax fi. fa., without a return or entry of no personal property. We think he can. No officer could do so under the tax law of 1804. Cobb’s Big. 1048. Gladney v. Deavors, 11 Ga. 88. Under that law, taxes were to be made by distress and sale “ of goods and chattels if any to be found; otherwise of the lands . . or so much thereof as will pay the taxes due, with costs.” This was changed by the code (§812), which declares: “Taxes shall be paid before any other debt, lien or claim whatsoever, and the property returned or held at the time of giving in, or after, is always subject. And see section 1978. Section 886 provides that “ executions for non-payment of taxes . . must be directed to all and singular the sheriffs and constables of this State ”; and section 888 declares: “Executions may be levied by
Another provision of the code tending to show that levies by constables under tax executions are not governed by the law applicable to levies under ji. fas. from justices’ courts, is section 889 of the code, which says:
The court erred in excluding the ft. fas., the entries thereon and the deed, and in not granting a new trial on that ground. Judgment reversed.