Freeman v. Mayor of Atlanta , 66 Ga. 617 ( 1881 )

Speer, Justice.

The record in this case discloses the following state of facts: A tax ft. fa. issued by the city of Atlanta, under date of August 21st, 1875, against John R. Wallace, for the sum of $1,278.12, for his taxes due said city for the year 1875, was, on the iot.h March, 1876, transferred by the marshal of said city to W. H. Venable, in consideration of $1,257.92. On the 16th March, 1876, said ft. fa. was entered on the execution docket of Fulton superior court. On the 8th August, 1877, this tax ft. fa. was levied on the property (a city lot) in controversy as the property of John R. Wallace, to which the plaintiff in error, as trustee, interposed his claim.- It was shown by the plaintiff in execution on the trial of the issue made (as to whether the property levied on was subject), that John R. Wallace owned the property in dispute in 1874 or 1875. It had been sold in 1874 or 1875 at public outcry, and John R. Wallace, defendant in ft. fa. became the purchaser, and paid for the property. That afterwards he sold the property to J. W. Sparks & Son, for $2,500.00, he agreeing to take up some of Wallace’s unpaid notes for the property, as part consideration for the purchase.

Two of the notes given by Sparks & Son to Wallace for the purchase money of the lot were indorsed by Wallace and transferred to John Neal. Neal brought suit on the notes. A judgment on said notes in favor of Neal vs. Sparks & Son was rendered. A deed for this property, dated 5th May, 1875, was made by Wallace to Sparks & Son, which was recorded 4th January, 1877. Under said judgment in favor of Neal, the house and lot in dispute was levied on as the property of Sparks & Son, by the sheriff, and at the sale Freeman, plaintiff in error, became the purchaser, at the price of $3,700.00, and took a sheriff’s deed. During the trial of the claim case below, the claimant proposed (after proving the execution of the same) to read in evidence the following paper rigned by the plaintiff in fi.fa.:

“A. M. Perkerson, sheriff,

May pay out the money raised on the fi.fa. of John Neal vs. J. W. Sparks & Son, provided he retains the sum of seventy-Ave dollars to be contested for me.

(Signed) W. H. Venable.”

Plaintiff in fi.fa. objected, and the court excluded the ■paper. It was further admitted that the lien of the city of Atlanta for taxes dated from 1st April, in each year.

The evidence having closed, the court charged the jury: “ On the production of the fi.fa. and proof of title in the defendant Wallace at the time of its issuance, or on 1st April, 1875, or that Wallace or some one claiming under him was in possession of the property at the time of levying, it would be your duty to find the property subject. This would be true notwithstanding the property was sold by the sheriff under the fi.fa. of John Neal vs. Sparks & Son and the claimant became the purchaser at such sale, and now holds under a title acquired that way. Venable was not obliged to pursue the fund raised by that sale, and his lien was not divested by said sale.” The jury found the property subject.

Claimant made a motion for a. new trial on the ground, 1st. The court erred in excluding the paper signed by Venable addressed to the sheriff. 2d. On account of the charge as above set forth; which was overruled, and c excepted.

We see no error in the action of the court on either of the grounds taken in the motion for new trial.' It is very clear that the title to the property was in Wallace on 1st April, 1875 — he not conveying it away until 5th May, 1875 — and the lien attaching for these taxes 1st April, 1875, this lien followed the property into the hands of Sparks & Son.

Was there anything in the sale of the property by the sheriff under the judgment Neal had against Sparks & Son-to divest this lien? We think not. The property was sold as the property of Sparks & Son — their interest-in it, and that alone, is what Freeman bought. The money raised from said sale was to be appropriated to debts of Sparks &■ Son — not Wallace. Had there been an overplus of money in the sheriff’s hands under this sale, after paying the liens against Sparks &■ Son, it would1 have belonged to them and not to Wallace. This tax fi-fa. being against Wallace, had no lien on the proceeds of that sale — but its lien still attached to the property as Wallace’s, and we see nothing in the private sale to Sparks & Son, or the sale by the sheriff thereafter made of the premises as their property to divest it. We think the court did right to exclude the paper offered in evidence, for the same was irrelevant. Nor do we find any .error in the charge of the court excepted to.

Let the judgment of the court below be affirmed.