National Bank v. Danforth , 80 Ga. 55 ( 1888 )

Bleckley, Chief Justice,

(after stating the above facts.)

1. The first question involves the propriety of treating Mrs. Clayton as subject to be assessed for these taxes for three years. The evidence in the record (about which there is no dispute) indicates clearly that she had been in the habit of paying taxes upon this property prior to 1883. The property was known in the tax-offlce as hers; and although the conveyance to her was not made until November, 1883, yet a return was made by her husband in that year, in which the reference to real estate was embraced simply in the word “ same,” which is interpreted by the evidence to mean the same as last year. We are not let into the actual return for 1882 to see how this property appeared there; but the indications are that, either, in that return or some preceding one, this identical property was put down to Mrs. Clayton, and we so treat the fact. Mrs. Clayton was the holder both of an absolute deed conveying this property to her, and (by assignment) of the bond for titles which Mrs. Danforth had given, and was thus in the position both of an ordinary owner and the holder of a bond for titles for further conveyance and assurance of her title. With reference to the public, we hold that the assessment, in case of an outstanding bond for titles, where the holder of it is in possession of the premises, may be made either against such holder or against the maker of the bond, the person in whom the legal title rests for the time being; and a sale by the public authorities founded on an assessment against either would pass the title no doubt as against the other, if it were made for the taxes of that property alone ; because it is no less the duty of the one than the other, relatively to the public, to pay taxes, or to see that they are paid. But as between themselves, it is very clear that the person who is in possession, enjoying the property itself or its rents and issues, ought to be charged, and is chargeable, with the taxes. If the vendor retains possession and gets bis interest and income too, of course he’ ought to pay taxes. If the vendee takes possession and receives the income from the property, he ought to pay the taxes, the vendor being charged with taxes on the unpaid purchase money; and in this case, the whole of it is unpaid relatively to Mrs. Danforth, the maker of the bond for titles. The vendor, the holder of the legal title, with the purchase money wholly unpaid, does enough if he pays taxes upon the purchase money. The vendee, being in possession under the bond for titles, and receiving the income, or the use of the land, ought to pay the taxes. This is the law, and we so announce it in the first head-note. Therefore, as between Mrs. Danforth and Mrs. Clayton, Mrs. Danforth being the maker of the bond for titles, and Mrs. Clayton the holder, and in possession of the premises, Mrs. Clayton is chargeable with taxes.

2. But it is said that the tax executions are void, for irregularity. I have never known any documents covered with more sins than have been attributed to them. The only attack, however, upon them in the record, as original fi.fas., without reference to the transfer, is that they were issued without due returns. If this property was included in the returns (however informal) for the three years, as it appears to have been, there were returns embracing this specific property. From the testimony of the tax officer, it is very rare that returns are made otherwise ; and doubtless that is true. For the purposes o-f this case, we hold the reference to previous returns sufficient, especially as the returns have been ratified, and all irregularities, if any, acquiesced in by the person who is chargeable, legally and equitably, with the taxes for said years. As to the point that the deed conveying title to her, and the transfer of the bond, were not made until the latter part of the year, we attach no importance to that, because it was competent for her to return this property before she got the deed. She may have held it as agent, trustee or friend, for her son, in whom the title had previously been; and if she returned it and was assessed, the tax fi. fa. for that year, as well as for the others, issued properly against her.

But suppose there were irregularities, it was competent for her to ratify the returns as they were made, and thus to waive any trival objection, perhaps any grave objection, to them; and she appears to have acquiesced in the whole matter, made no objection to anything connected with it, and finally pointed out the property to be levied on, the very property that is now in controversy, and the levies were made accordingly, under her instructions; so the levying officer testifies.

As against all these other parties, this tax, if for the proper amount, the mortgagor and the mortgagee, the holder of the mechanic’s lien and the holder of the security deed, — as against them all, it is a just and righteous tax, and it will and ought to affect them if it can be legally collected out of the person against whom it was assessed, and the purport of the assessment as against her we have already shown. She can make a waiver that will affect them, because of the fact that it is right and just and equitable for them to submit to the collection of these taxes out of this property. It is as much an equitable and legal claim, relatively to the public, against the property with reference to them as it is with reference to her; and for that reason we allow her waiver to affect them.

3. Taxes on the mortgaged premises, properly paid by the mortgagee to protect his security, are charges upon the property as against the mortgagor, and all persons, holding or claiming under him by lien or purchase subsequent to the date of the mortgage; but taxes not assessed on the specific property, though included in the same execution, and though paid by the mortgagee because so in-eluded, are not charges, except as against the defendant in execution. This head of the case is controlled by the same principle involved in the preceding; the payment of these taxes by the-mortgagee was properly made as to all the parties in the case. The mortgagee finding his security endangered (and he had not yet foreclosed his mortgage), went forward under a notice communicated to him by the attorney of the holder of one of the other debts, and paid off the incumbrance. In acting so, he acted for the benefit of all concerned. These ta~s.fi. fas. having the rank and dignity which the statute attributes to them, would have extinguished everything in front of them. They would have cut down all these liens and claims upon the property had it been sold out as Mrs. Clayton’s property. It would have extinguished everything held by any of these claimants with regard to the property itself; and they would have been forced to go upon the fund, the proceeds, if there had been any, in excess of the payment of these taxes. So the interposition of the mortgagee to protect his own security inured to the benefit of the whole, and no one, I apprehend, can doubt that the holder of an incumbrance upon property, may protect it when it is threatened with a sale that will defeat his lien upon the property itself; He will not be forced to go upon the proceeds, especially before he has reduced his lien to judgment. The payment of these taxes, without any reference to whether the bank got a title to the executions by transfer, is an equity, a claim upon this property in the nature of expenses incurred for the benefit of all concerned; and taxes to that extent attach to the mortgage, and are to be paid with the mortgage out of the proceeds of the property.

4. This is our first judgment upon the construction which the act of the legislature in reference to transferring tas.fi. fas. and entering them on the execution docket, ought to receive. Code, §891(a). No doubt the main purpose and policy of the statute was to protect purchasers and others who might become interested after the date of the transfer; but then there is policy in upholding registering as the legislature prescribes for it to be done; and there is no reason that we know of why one who becomes a transferee under the law should not comply-with it; and if he fails to comply with it, we regard that as defeating him as the holder of a strict legal lien in his competition with everybody except the defendant. There is no indication in the statute of any purpose to serve the defendant by registering the transfer, or entering it upon the execution docket. The defendant cannot possibly be hurt by one going forward and paying taxes and taking a transfer; and the act of 1872 provided for the transfer itself, without putting it to any conditions about entering; and we think these fl.fas. are good in the hands of the bank as against Mrs. Clayton, the defendant, but they are not good as against others. The registry of them after the thirty days expired is a sort of voluntary act, and does not come under the statute applicable to this sort of transfer, as we understand it; but the point is not without some difficulty, because it does not appear that anybody here has been hurt. There has been no suffering. Nobody has acted in any valid matter. There has been some action that was invalid after this transfer was made, but the respective interests of the parlies are unchanged in this case since the transfers were made, as far as we can see. But it is better to stand by the statute than to fritter it away; it is better to let people who take tax fi.fas. register them as they are required to do, if they want to afíect strangers by the transaction. At all events, we will set out on this line and maintain it until it is proved to be wrong. For my part, I think it perfectly sound, and I believe my brethren fully concur with me; but it is a new question, and there may not be that certainty about it which is desirable. It is the opinion we entertain now, and we so rule, as announced in the fourth head-note.

5. The lien of a contractor or mechanic for improvements is not a charge upon the premises or the improvements as against prior liens or incumbrances put upon the property by a previous owner, and duly recorded.

We once had a statute that gave mechanics, and perhaps contractors and material men also, liens upon improvements made without regard to title; but we think that statute was repealed by the lien law of 1873 (code, §§1979, 1980); and this work being done under the latter, we think it is governed by the general rule that he who performs labor and services of any sort, or furnishes material, has a claim against his debtor, and nobody else. As to any clear interest that Mrs. Clayton, who employed this contractor through her son, has in this property, the lien ought to be and will be protected; but Mrs. Clayton’s contracts cannot retroact upon a prior title or prior liens put upon the property, not by her but by her son, the previous owner. It will be observed that there is no question in this case now as to the effect of this lien as a lien against her son, because he is not a party to this bill; and the claim of a lien as to him, although duly recorded, was apparently abandoned. No action within the twelve months was brought against him to the enforce it, or ever has been brought so far as appears. When the mechanic did the work under employment by Mrs. Clayton, Mrs. Olay ton as against Mrs. Danforth was simply the holder of a bond for title with the money upaid, — and the statute itself excepts that case — the mechanic’s lien, is never good as against the purchase money, when the person who employed the mechanic holds only a bond for titles; and that was all Mrs. Clayton had as against Mrs. Danforth. The debt due to her was in the nature of purchase money; Mrs. Danforth, having taken the legal title as security and made a bond to reconvey on payment of that debt, the debt was in the nature of purchase money, relatively to any lien that Mrs. Clayton could put upon the premises; and so this mechanic’s lien comes almost within the very words of the statute to postpone; it is not effective against Mrs. Danforth, the maker of the bond for titles. And to affect the mortgage by it would be to go back to the year 1877, and allow a mortgage of that date to be affected by work done on the premises in 1884; and if that were allowed, no creditor would ever know certainly what security he had, because very frequently the improvements eat up the improved ; it takes more to pay for the work than the property was worth before the work was done, and sometimes more than the whole is worth after the work.

6. A fi.fa. issued upon a judgment rendered for a debt secured by a deed made under §1969 of the code, cannot be levied upon the realty conveyed as security until after the creditor has executed, filed and had recorded, a deed reconveying the property to the debtor; and a sale by the sheriff to the creditor, the levy having been made after the execution of such deed, but before it was either filed or recorded, is utterly void.

This, in effect, has been two or three times decided by the court, and it is the plain import of the statute. There is no right to levy in such a case until the deed is filed and recorded; indeed up to that time the estate is still in the creditor. The mere execution of the deed does not pass it back so as to seize it as tbe property of the debtor, until tbe deed is delivered in tbe way prescribed by the statute, or in some other way; and here there was no delivery until the next day after this levy, and no recording until a day or two later. So that Mrs. Danforth, by the sheriff’s sale she procured to be made, at which she was purchaser, took no right whatever, and her equities, if she had any, founded upon the theory that she was an innocent purchaser without notice of the transfer of these tax fi. fas. fall with her title. She is a mere creditor holding her security still. She finally put herself in a position to levy on the property, but she was not in that position at the time the levy was made.

7. The result is that the fund now in question, when realized, should be applied in order of priority as follows : First, to the mortgage^, jdf. and so much of the taxji.fas. as represent the taxes for the years 1888, 1884 and 1885 on this specific property, to be ascertained by multiplying the assessment by the rate for each year; secondly, to the judgment for the debt covered by the security deed; thirdly, the overplus, if any, to be treated as belonging to the ultimate owner of the fee (Mrs. Clayton), and as her property to be applied, first, to the contractor’s lien; secondly, to the'residue of the taxfi. fas., thirdly, the balance, if any, to be paid to her.

8. A contract to pay attorneys’ fees for collecting, in addition to principal and interest, is not, on its face, usurious ; nor does it become usurious by reducing the debt to judgment, and including in the judgment ten per cent, for attorneys’ fees.

The law of Georgia recognizes the validity of such a stipulation, and it meets the justice of the case very frequently for the debtor to pay for the collection rather than the creditor. We confine this to the trial by inspection of the paper; we do not mean to intimate that usury might not be covered up by such a stipulation, that it might not be a disguise, or contrivance, for the concealment of usury; but there is no such indication in this case. There is no evidence that it was not a Iona fide stipulation to cover the contingency of having to incur expense in collecting this debt.

Judgment in first case reversed, with direction; in second, affirmed.