Clower v. Fleming , 81 Ga. 247 ( 1888 )

Bleckley, Chief Justice.

1. Real estate when sold under a tax ji. fa. being redeemable, and when sold under a judgment being irredeemable, there is such incompatibility in these incidents that they cannot combine and both follow from a single sale made by one and the same act, though sufficient authority for making a sale of either class be in the officer’s hands. An attempt to execute both powers together, or at once, must result in one of three ways; it must pass no title, or pass title subject to redemption, or pass title not subject to redemption; in other words, the sale must be a nullity, or good as a tax sale, or good as a judgment sale. To pronounce a sale void because the officer possessed and exercised more power than he needed for making a valid sale of either class, would be a very unsatisfactory solution, for it would be to defeat the purchaser, not for defect but for excess of authority in the officer. To combine two forces and apply both where either would have been sufficient could not, it seems to us, result in rest rather than in motion, in legal mechanics any more than in physical. The title moved out of Mrs. Clower, the defendant in these ji. fas., into Eleming, the purchaser. But what sort of title, absolute or conditional? Subject to redemption of the property, or not so subject? The tax fi.fa. was the higher in dignity; it had priority over the other, was a first lien on the proceeds of sale, and would have taken them all had all of them been needful to satisfy it. As it dominated the proceeds, so, we think, it dominated and gave character to the sale. Moreover, when a sale is involuntary, made not by the will of the owner but by legal force under process of law, if it is ambiguous, can be put into either one of two classes but not into both, it ought to be classified favorably, not unfavorably, to the owner; as a sale on terms, rather than one absolute and without terms; as a sale attended with the right to redeem, rather than one not so attended.

But after thus grading the sale, there is no reason for holding that the property is redeemable on less onerous terms than it would be had it been sold under the tax ■fi.fa. alone. No larger estate was divested or acquired, and perhaps no larger a price paid or received, than would have been had the sale been under that fi. fa. only. And the proceeds belonged no less to the defendant in execution; and in fact she had the benefit of all the proceeds, in the present case, for they were applied first to the taxes, and the excess to the judgments. There is no law to redeem unless by refunding the whole amount paid by the purchaser, with the statutory premium thereon; redemption could not be effected by refunding, or offering to refund, a less amount measured by the taxes, with premium on that much. Code, §898.

2. There might, under the evidence, be some question as to whether the levy was not excessive, had the defendant in the execution owned the fee or had the sale been made under the ta -k fi.fa. only. For, had the defendant owned the fee, the fee would have passed to the purchaser in case of an omission to redeem; or, though she owned a life estate only, the fee being levied upon, would have passed had the sale been made for the taxes of that specific property only. The sale would, in that case, have affected the remainder as well as the estate for life. But as the sale was a mixed one, made not alone for the taxes of that specific property, the sale was not excessive even if the levy was ; for it is not shown by the evidence that the life estate in the whole tract was too much to levy upon for the taxes, nor is there any evidence that a life estate in less than the whole was of any value, or would have brought, if sold separately, anything whatever. "When property is sold for taxes as the property of a tenant for life, no more than the interest of the tenant for life passes, unless the sale is for the taxes on that specific property only. This is so where the sale is by virtue alone of the tax execution. Much more must it be so where the sale is made, as this was, under the joint authority of ataxfi.fa. and a general judgment. Here the proceeds of sale all belonged absolutely to the life tenant, and were applied for her benefit; whereas, if the property had been sold for its own taxes and for nothing else, the surplus, after paying the taxes, would have belonged to the remaindermen after the life estate in the same was exhausted.

3. Two offers to redeem were made, one attended with a strict tender, except that the tender was too small in amount; the other sufficient in amount but without a strict tender of the money, and of doubtful sufficiency in point of time. The former we have disposed of under the first head of this opinion. As to the latter, we rule that had it been a strict and proper tender, it would be difficult to treat it as reinstating Mrs. Clower in the legal title so as to enable her to recover in this mere legal action. Made in proper time and manner, it would have enabled her to support a bill, or an analogous proceeding at law to compel acceptance, and to rehabilitate her both with title and possession ; but to accomplish that result she would have to make the tender continuous. Not taking that course, but bringing an action of complaint, could she thus avoid making a continuous tender? We think not. She cannot keep her money and recover the land too. She must at least make a¡ continuous offer to pay. Certainly this much was necessary in order to succeed in the statutory action of complaint, as this action was, or in ejectment. Had. she brought the money into court, that perhaps would have sufficed in place of the continuous offer by pleading, but one or the other was indispensable — perhaps both. We need not determine whether both would be required or not; it is enough that one or the other was necessary, and she did neither. On any theory as to the effect of tender which we could possibly recognize as sound, the verdict against her was correct.

4. It is true the court erred upon the subject of prescription, and in more respects perhaps than one; but there is no occasion even to specify such error, much less to discuss it, for prescription was utterly useless to the prevailing party on the facts and law of his case, as we have seen. He had no need for prescription but was protected without it. He was clothed with the strict legal title to the whole estate in these premises for and during the life of Mrs. Clower, the adverse party.

The judgment refusing a new trial is affirmed.