Elder v. Home Building & Loan Ass'n , 185 Ga. 258 ( 1937 )

Hutcheson, Justice.

1. He who would have equity must do equity, and give effect to all the equitable rights of the other party respecting the subject-matter of the suit. Code, § 37-104. “One seeking relief from excessive tax levies, but admitting, either expressly or by necessary implication, that he owes part of the tax covered by such executions, must pay or offer to pay the amount of the taxes admitted to be due, in order to obtain the relief sought.” Peoples Credit Clothing Co. v. Atlanta, 173 Ga. 653 (160 S. E. 873), and cit.; Candler v. Gilbert, 180 Ga. 679 (180 S. E. 723) ; Pierce Trading Co. v. Blackshear, 182 Ga. 649 (186 S.E. 721).

2. The allegations of the petition in the instant case, that the petitioner has been pnable to ascertain the exact amount that the execution should have issued for, and that the taxing authorities of the city have “refused to ascertain the exact amount legally due by” petitionex-, when considered in the light of the fact that the city contends that the total amount of the execution is the amoxint “legally” due, and that the ascertainment of the amount for which petitioner contends the execution should have issued is a mere matter of mathematical calculation, based upon the valuation of the property which petitioner admits is legally taxable and the tax rate applicable thereto, do not allege a sxiffieient reason for the failure of the petitioner to pay or offer to pay the amount admittedly due.

3. It follows, for the reasons above given, that the petition failed to set forth sxxiffeient facts to authorize a court of eqxxity to grant the relief prayed for. The court erred in overruling the demurrer on that ground. In view of the above ruling, the further action of the court was nugatory.

No. 11908. December 14, 1937.

Judgment reversed.

All the Justices concur, except Russell, G. J. dissenting. J. C. Sewage, G. S. Winn, Bond Almond, and J. G. Murphy, for plaintiff in error. William Wallace Lyons and Frank Gonstangy, contra. Brief for persons at interest, not parties, by J. L. B. Boyd,, Mc-Flreath, Scott, Duckworth •& DuYall, M. A. Allison, D. B. Gumming, J. A. McCurdy Jr., J. Glenn Giles, Erwin, Erwin & Nix, E. A. Birchmore, Maddox, Matthews «£' Owens, Mack Barnes, Wright Islar, Howell Gold, E. C. Stark, B. D. Tisinger, F. S. Lytle Jr., J. H. Highsmith, W. M. Lester, Hoyt-H. Whelchel, Hendrix ■& Buchanan, Candler, Oox & McLarnb, and Crenshaw, Hansell & Gunby.