Ayer v. Lamar County , 194 Ga. 712 ( 1942 )

Where a county has purchased property at a sale for taxes due to the State and the county, and after twelve months from the date of such sale has given notice to foreclose the right of redemption as provided by the act of 1937 (Ga. L. 1937, p. 491), the owner of the land (defendant in the tax executions under which the land was sold) can not maintain a suit to cancel the tax deed and enjoin the county from interfering with her possession of the property, upon the alleged ground that some of the tax claims were void, without first tendering to the county the amount of the taxes which she admittedly owed.

No. 14277. OCTOBER 14, 1942. Mrs. T. B. Ayer filed a petition against Lamar County, seeking to have a tax deed held by the defendant declared void and canceled, and to enjoin the defendant from interfering with her possession of the property described in the deed. She alleged, that she is the owner of a life-estate in 225 acres of land located in Lamar County; that on August 8, 1939, this land was levied on under an execution for 1932 state and county taxes due by the plaintiff, the levy reciting that it was made "to satisfy this fi. fa. and other fi. fas. for state and county taxes for the years 1933, 1934, 1935, 1937 to 1938;" that in pursuance of this levy the sheriff advertised the land to be sold on the first Tuesday in November, 1939, for the stated purpose of satisfying the 1932 fi. fa. and the tax fi. fas. for 1933 to 1938, inclusive, which were also in his hands for collection; that Lamar County bid in the land for $409.20, and received a sheriff's deed to the life-estate in the land; that the sheriff's return of the sale stated that in addition to satisfying the fi. fas. for the years 1932 to 1938, inclusive, a portion of the proceeds was used to satisfy tax executions against the plaintiff for the years 1930 and 1931; that the 1930 and 1931 executions were dormant and barred by the statute of limitations; that the levy was excessive, because the land was capable of subdivision in such a manner that only an amount sufficient to satisfy the small amount of taxes due by the plaintiff could have been levied on; that the tax deed is illegal and void, because the alleged sale was never completed by the payment of the purchase-money in terms of the law, so as to cause the twelve-months period of limitation to commence, in that the record does not show that Lamar County paid the purchase-price to the sheriff or his deputy; "that the county authorities of Lamar County might have considered the purchase-price paid to the levying officer as the result of an adjustment or calculation between the ordinary of said county or commissioners or any other tax official and the levying officer, but such is not a payment of the purchase-price to the deputy sheriff, as contemplated by law;" that on or about November 8, 1940, the plaintiff received a notice from the county attorney of Lamar County that if she did not redeem the property by December 23, 1940, her right to do so would be barred and foreclosed; that this notice was based upon the redemption after tax sale act of 1937 (Ga. L. 1937, p. 491), which does not apply in this case, because the act applies to legal sales, and not to illegal and void sales; and that the deed is ineffective, because it is improperly drawn and recorded.

By an amendment the plaintiff alleged that Lamar County had not given her credit on her 1938 taxes for the $2000 homestead exemption provided for by the constitutional amendment of 1937, although through her husband as agent she notified the taxing authorities of her claim for said exemption; that under the constitutional amendment, however, she was not required to file any written or oral claim for an exemption; and that the act requiring the filing of a claim (Ga. L. Ex. Sess. 1937-38, p. 145) is void, because it contravenes the constitutional amendment to which it refers. She further alleged, that she owed none of the taxes claimed against her, "with the possible exception of a very minimum amount;" and that after full credit was given her for amounts claimed which were not due, she stood ready to pay such amount as might be found due. She prayed for an accounting. She alleged, that the sale was illegal, because the county bid more for the property than the taxes and costs; and that because of her inability to ascertain the amount due, and because of her financial inability to tender the amount claimed by the defendant, she had made no tender of any amount.

The defendant answered, denying that tax sale and deed were invalid as alleged, and denying the plaintiff's right to any of the relief sought. It was alleged that the plaintiff was estopped from attacking the levy under which the sale was made, because she had sought to enjoin the sale in a suit which she had abandoned and which had been dismissed after she had been denied a temporary injunction.

The case was submitted to the judge on an agreed statement of facts, from which it appears that the plaintiff through her husband as agent requested the county authorities to have the life-estate, rather than other property, levied on to satisfy the tax fi. fas., and asked the county to buy it in for enough to cover all the taxes due and the costs, stating that she would redeem the property within the redemption period; that the plaintiff failed to redeem the property within twelve months, so foreclosure proceedings were instituted; and that the plaintiff made no request for tax exemption under the constitutional amendment of 1937 until 1940. There was nothing in the agreed statement of facts to show that the life-estate was worth more than the amount bid by the county, but there was evidence that it was worth about that amount. On consideration of the pleadings and the agreed statement of facts, the court entered judgment for the defendant; and the plaintiff excepted. The court did not err in refusing to grant the plaintiff any of the relief sought. Lamar County, the defendant, was proceeding under the act of 1937 (Ga. L. 1937, p. 491) to foreclose the plaintiff's right to redeem property sold at a tax sale. While a portion of the taxes involved became due before its passage, this act was applicable because the sale took place after its passage. See DuBignon v. Brunswick, 106 Ga. 317 (3) (32 S.E. 102). After the county had given notice to foreclose the right of redemption, as provided in the act, the plaintiff sought by this suit to have the sale and deed declared null and void, to have the deed canceled, and to enjoin the county from interfering with her possession of the property described in the deed. It is contended that the sale and deed were null and void, because a portion of the proceeds therefrom was applied to the satisfaction of tax fi. fas. against the plaintiff for the years 1930 and 1931, which executions were more than seven years old at the time of the levy under which the sale was made, and because the plaintiff had not been given credit for a homestead tax exemption, for the year 1938. The plaintiff did not file a claim for a tax exemption, as required by Ga. L. Ex. Sess. 1937-38, p. 145, but she contends that this was not necessary, because this act is void in that it violates the constitutional amendment providing for the exemption. It is also contended that the deed was void because the county's bid covered these illegal tax claims. No contention is made that the plaintiff did not owe the full amount of the 1932 tax execution under which the levy was made, or that she did not owe the full amount of the executions for taxes for the years 1933 to 1937, inclusive, which were satisfied from the proceeds of the sale. Yet she made no tender of any amount. The act of 1937 providing for the foreclosure of the right of redemption contains the following provision: "After notice to foreclose the right of redemption, as hereinabove required and provided for, shall have been given, no suit at law, or bill in equity, shall be filed, allowed, sanctioned, or maintained for the purpose of setting aside, canceling, or in any wise invalidating the tax deed referred to in such notice, or the title conveyed by said tax deed, unless and until the plaintiff in said suit or bill in equity shall pay, or legally tender, to the grantee in said deed, or the heirs, successors, or assigns of said grantee, as the case may be, the full amount of the redemption price for said property, as hereinabove fixed and determined; unless it shall clearly appear that the tax or special assessment for the collection of which the execution under or in obedience to which said sale was held was not due at the time of said sale, or that service or notice was not given as required herein." Code Ann. § 92-8314. Even if, as contended, the plaintiff did not owe the 1930 and 1931 tax executions, and should have been entitled to a homestead tax-exemption credit on the 1938 taxes, she was not relieved thereby from tendering the amount that she admittedly owed; and her financial inability to make the tender does not alter the rule. Peoples Credit Clothing Co. v. Atlanta, 173 Ga. 653 (160 S.E. 873); Candler v. Gilbert, 180 Ga. 679 (5) (180 S.E. 723); Pierce Trading Co. v. Blackshear, 182 Ga. 649 (186 S.E. 721); Elder v. Home Building Loan Association,185 Ga. 258 (194 S.E. 745); Clisby v. Macon, 191 Ga. 749 (13 S.E.2d 772); Georgia Baptist Orphans Home Inc. v.Moon, 192 Ga. 81 (14 S.E.2d 590). This rule applies in the instant case. If the county bid more than the amount of the taxes and costs actually owed by her, the plaintiff should have tendered at least the amount of the taxes she admittedly owed. Having failed to make this tender, she was not entitled to any relief based upon the alleged invalidity of a portion of the tax claims. No contention is made that the county did not properly complete the purchase at the tax sale by making payment as required by law (Code Ann. § 92-8201); and thus it appears that the redemption period allowed by law had elapsed before the institution of the foreclosure proceedings. The plaintiff was not entitled to enjoin these proceedings, without a proper tender.

Judgment affirmed. All the Justices concur, except Hewlett,J., not participating.