City of Baxley v. Drew , 190 Ga. 486 ( 1940 )

The ruling in Minchew v. Juniata College, 188 Ga. 517 declared the law controlling the decision of the present case, on the issue of superiority of year's support to liability for proportionate part of taxes.

13230. JUNE 13, 1940. The facts of this case and the rulings of this court appear in the report on its first appearance. Minchew v. JuniataCollege, 188 Ga. 517 (4 S.E.2d 212). After the case was returned to the trial court the City of Baxley offered a general demurrer and a motion to dismiss, on the grounds: (1) That the original petition filed by Drew does not state a cause of action, and the plaintiff is not entitled to any of the relief for which he prays. (2) "It appears from said petition that petitioner was the purchaser of the property described in the petition, that he paid to the sheriff the amount of his bid and received from the sheriff a deed to the property before filing the instant proceeding. By said proceeding petitioner seeks to force other persons to come into court to claim the fund in question, without showing any connection between him and said persons or any right to require them to come into court to claim said fund in question or any of the other relief prayed for. Plaintiff does not seek to disaffirm his purchase, but alleges completion of said purchase by payment of the purchase-money and conveyance to himself of the property. No legal right is shown in plaintiff to any action against any defendant named, nor any right to bring a proceeding for the distribution of said fund in which he is in no way interested, nor any right to any equitable relief as against the defendants or any one of them."

The City of Baxley offered also an amendment to its original intervention, alleging substantially the following: At the time of the sale of the property the tax executions enumerated in its intervention were unpaid. Before the sale Mrs. Minchew planned to purchase the property; in carrying out this plan she procured her son-in-law, Drew, to bid in the property. Drew did not pay the amount of the bid, but it was paid by Mrs. Minchew. After the sale she applied to Baxley Federal Savings Loan Association for a loan of $4500, a portion of which was to be used in paying the amount of the bid. Two of the directors of the association are members of the city council; one of these directors, acting on behalf of the city, objected to any loan unless it was agreed that the accrued city taxes and paving assessments should be paid from the proceeds of the sale; the other directors agreed to this objection; the secretary of the association informed Mrs. Minchew, who agreed that the taxes and paving assessments would be paid from the proceeds of the sale; the attorney of the association discussed the matter with the attorney for Mrs. Minchew, and he also agreed to the above. Upon being informed, the directors approved the loan, which would not have been approved except for the agreement. The attorney of the association advised, that, to avoid any question with reference to title by reason of the equity having been set aside to Mrs. Minchew, it would be better that the loan be approved in the name of Drew, to which the directors agreed, and substituted the name of Drew for that of Mrs. Minchew. $2500 of the loan was used in paying the amount of the bid, and the remaining $3100 was paid by Mrs. Minchew from funds which she had secured from sale of other property. In all of these matters Drew was acting for Mrs. Minchew, she attending to all details. At the time of the sale the tax executions and paving-assessment executions, at the request of the attorney for the loan company who was also attorney for the plaintiff in fi. fa., were by the marshal placed in the hands of the sheriff. It was agreed that the plaintiff in fi. fa. or his attorney would cause the property to bring an amount sufficient to pay the execution of the plaintiff in fi. fa. and tax and paving-assessment executions, and that the tax and paving executions would first be paid. The marshal had neither the intention nor the authority to waive any right of the city to proceed against the property; such action of the marshal was taken without authority of the city with the understanding the tax and paving executions would be paid out of the funds and in order that the property might be sold free of the liens of said executions and bring its full value, and except for the foregoing facts the property would not have brought an amount in excess of the secured debts. The legal title to the property covered by deeds to secure debt, in excess of $3000, was more than enough to pay all taxes and paving assessments, and a sale would not have discharged the lien or prevented the city from collecting the executions in full out of the property. All the transactions were had and the loan made with the understanding that all taxes and paving assessments would be paid out of the funds derived from a sale of the property. While the instant proceeding was brought in the name of Drew, it is solely for the benefit of Mrs. Minchew, who is responsible for the allegations of the petition. An order of distribution should be made, requiring the sheriff to distribute the funds and pay off all the tax liens and paving assessments out of the proceeds of the sale. Neither Mrs. Minchew nor her attorney, who were in the presence of the attorney for plaintiff in fi. fa. when the announcement was made that the tax and paving assessment, which otherwise would have been liens against the property even after the sale, had been placed in the hands of the sheriff and would be paid in full out of the proceeds of the sale, made any statement to the contrary, or to the effect that any portion of the funds would be claimed under a claim of year's support, or that the year's support would be asserted against any part of the fund. Mrs. Minchew is now estopped to assert a claim against payment of the tax and paving executions. At the time of the filing of the petition Drew did not have any interest in the property, he having reconveyed it to Mrs. Minchew. The prayers were that the tax and paving executions be paid out of the fund; that by reason of the agreement Mrs. Minchew be adjudged estopped to claim any part of the fund as against city taxes and paving assessments, and be adjudged to have waived the priority of the year's support; that if the first two prayers are denied, it be held the property is subject to the tax and paving executions, and that defendant have the right to proceed against the property for collection of the executions; that it be adjudged that Drew did not have any interest in the property and was not entitled to maintain the petition; and that the same be dismissed.

The judge overruled the demurrer, disallowed the amendment, and rendered a judgment distributing the fund. The City of Baxley excepted to this judgment, and to the other rulings just stated. It was stated in the bill of exceptions: "Plaintiff in error admits that the order of distribution entered by the court, amendment of City of Baxley having been disallowed, is in accord with the judgment of the Supreme Court with respect to said distribution; and that the only alleged errors for consideration are: first, whether said proceeding was subject to the general demurrer and motion to dismiss; second, whether the amendment offered by City of Baxley should have been allowed; third, whether the court erred in adjudging that that portion of the land in question, representing the legal title as distinguished from the equity, set aside as a year's support, is discharged from the lien of tax and paving assessment executions of City of Baxley." 1. An intervenor takes the case as he finds it. Charleston Western Carolina Railway Co. v.Pope, 122 Ga. 577 (50 S.E. 374); Seaboard Air-Line Ry. v.Knickerbocker Trust Co., 125 Ga. 463 (54 S.E. 138); Atlanta Carolina Ry. Co. v. Carolina Portland Cement Co., 140 Ga. 650 (2) (79 S.E. 555); Elliot v. Macauley, 177 Ga. 96 (169 S.E. 358). Where another party filed a petition to require all lienholders to set up their claims to a fund in the hands of the sheriff, and seeking distribution of the fund in accordance with the priorities of the claimants, so that the property which he bought at the sale might be clear of all liens, and where one of the intervenors excepted to the judgment of the superior court fixing the priorities, which judgment was affirmed by the Supreme Court (Minchew v. JuniataCollege, 188 Ga. 517, 4 S.E.2d 212), such intervenor could not, after the case was returned to the trial court, raise questions by general demurrer and motion to dismiss, which involved the validity of the proceedings on the original petition. Accordingly the judge did not err in overruling the general demurrer and the motion to dismiss, interposed by the intervenor to the original petition.

2. In the instant case the widow of the defendant in fi. fa. intervened, setting up her year's support. The City of Baxley also intervened, claiming that the executions for city taxes and paving assessments should come ahead of the year's support. On separate bills of exceptions a judgment distributing the fund was affirmed as to the City of Baxley and reversed in favor of the widow's receiving a year's support. On return of the case to the trial court, the city offered an amendment to its original intervention, in which it was contended that the taxes and paving assessments should prevail over the year's support, and alleged that the widow was estopped to assert her year's support, among other reasons, because the plaintiff purchased the property for the widow, who, in obtaining a loan (part of which was used in paying the purchase-price), agreed that the taxes and paving assessments would be paid from the proceeds of the sale; and praying, in the event the widow was not held to be estopped, that it be decreed that the property was subject to the tax and paving executions, and that the city be adjudged to have the right to proceed against the property for collection of the executions. No fraud was alleged in the amendment, which was in effect an elaboration of the original intervention filed by the city; and no facts were alleged which the city did not know at the time its original intervention was filed. The ruling in Minchew v.Juniata College, supra, that the year's support was superior to the taxes, and that the part of the property represented by the legal title was not liable for its proportionate part of the taxes, became the law of the case. The court did not err in disallowing the amendment to the city's intervention, and in rendering an order distributing the fund in accordance with the judgment of the Supreme Court. Western Atlantic Railroad Co. v. Third National Bank, 125 Ga. 489 (54 S.E. 621); SouthernBell Telephone c. Co. v. Glawson, 140 Ga. 507 (79 S.E. 136); Georgia Railway Power Co. v. Decatur, 153 Ga. 329 (2) (111 S.E. 911); Towers v. City Land Co.,159 Ga. 486 (125 S.E. 837); City of Atlanta v. Smith,165 Ga. 146 (140 S.E. 369).

3. The foregoing disposes of the controlling questions in the case, adversely to the plaintiff in error.

Judgment affirmed. All the Justices concur.