Hargrove v. Lilly , 69 Ga. 326 ( 1882 )

Crawford, Justice.

The governing questions in this case are one of fact and one of law. The one of fact is, whether the property held by Wesley Calhoun the decedent, at the time of his death, was the property ¿f the county or his own — he having exercised the functions of the office of tax collector for about seven years, without accounting for the taxes received, buying property meanwhile, and possessing none of his own, as is alleged, when he entered upon the duties of his office.

The question of law is, whether the amount of money admitted to be due the county for taxes collected and unpaid, had priority over the wife’s right of dower, a decree in favor of the vendor for the unpaid part of the purchase money due on the decedent’s land, and other judgment liens.

1. The case was referred to an auditor, who reported that the testimony was not sufficient to establish the fact that the property of the deceased had been purchased with the county funds, to authorize him in so finding. This was excepted to by the complainant, and upon its being submitted to the judge without the intervention of a jury, he sustained that finding of the auditor. Upon the testimony submitted to him, we cannot say that his judgment on the facts was wrong, as to have found that it was the money of the county would have been but an inference.

Such being the settled fact, there was no equitable title in the county, nor was the deceased a trustee by implication or otherwise.

2. The legal question must be settled by the statute regulating and directing the payment of debts by executors and administrators, and that giving- to the wife the right of dower.

First then as to the priority of debts, which is declared to be as follows: The funeral expenses, including the physician’s bill and expenses of the last sickness, the necessary expenses of administration, including a provision for the support of the family, unpaid taxes, or other debts due the state or United States, debts due by deceased as executor, administrator, guardian or trustee, then judgments, mortgages, etc.

Under the'foregoing provisions,'the claim of the county could only be paid before the others upon the ground that it was a debt due the state. Is it then a debt due the state? We think not. Each county is a body corporate with such powers and limitations as may be prescribed by law. Suits may be brought by, or against, a county in the name thereof. Art. 10, Sec. x, Par. 1, Constitution.

Contracts may be entered into with a county as provided by law. It may own property, incur debts, levy taxes, ordinary and extraordinary, upon proper recommendation, and have legal process for the collection thereof from the tax-payers, or other persons having the same in their hands; indeed it has an existence, with such rights and powers as to separate itself in its financial matters from the balance of the state, and may levy its taxes for revenue, provide and direct how they may be collected and disbursed, without interference from any of its sisters. The taxes levied for county purposes belong to the county, and cannot be taken from it by the state. How, then, can it be maintained that this money is due the state, when she could not be heard to claim it, if it were collected ? It was not levied for her use, and in a contest with the county therefor, no judicial tribunal would award it to her. And to put it beyond dispute of cavil, section 551 of the Code declares that all county funds are to be paid to, and disbursed by, the county treasurer, whereas, section 91 of the Code declares that the state treasurer shall receive, keep, and pay out all the money belonging to the state.

Many decisions of this court have recognized the distinction between levies of taxes for state, and taxes for county purposes. 27 Ga., 355; 47 Ib., 643; 51 Ib., 254; 52 16., 233.

It is hardly necessary to say that the unpaid taxes referred to in the sections of the Code cited, are intended to provide for silch as may be due from the individual on his own personal tax.

It is to be kept in mind that we are dealing with the priority of1 debts against decedents, and not against insolvents.

On the matter of the wife’s right of dower, that question is settled beyond controversy in her favor, wherever it appears that the husband dies seized and possessed of any real estate, unless it is lost or barred by some act of the wife, which is not pretended in this case.

It will be seen that,.under the view which we take of this case, the decree in favor of the vendor fixing a lien upon this land has priority over the debt due the county and must be first paid, and so of the judgments.

Let the judgment of the court below be affirmed.