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Beck, P. J., and Hines, J. While concurring in the result reached by the majority, we dissent from the following portion of
*384 the opinion of the majority, to wit: “But where the owner fails to return the land, there is no provision of law whereby his title can be divested by levy and sale as the property of another person under a tax execution issued against such other person. To take land from its owner under such levy and sale, which is not a proceeding in rem or a proceeding in personam against the owner, would deprive him of his property without due process of law.” Where the owner of land fails to return the same for taxation, but the same is returned by another,.and where the tax on such land is neither paid by the person who returns it nor by the person claiming to be the true owner, a sale of such land under the levy of a tax fi. fa. issued against the person so returning the same for the taxes thereon is valid, and passes good title to the purchaser, if the same is free from fraud and is otherwise unobjectionable, although the defendant in the tax fi. fa. was not in possession of the land at the time said return was made, or at the time the tax fi. fa. was levied. As a general rule, no property can be sold under a tax execution in personam as the property of the defendant therein, when the defendant neither has title nor possession, nor any right to represent the person who has it. Clewis v. Hartman, 71 Ga. 810; Burns v. Lewis, 86 Ga. 591 (13 S. E. 123); McLeod v. Brooks Lumber Co., 98 Ga. 253 (26 S. E. 745). But to this general rule there is an exception. If the true owner of property fails to return the same for taxation, and the same is returned by another, the State and county are entitled to the taxes thereon; and if the taxes are not paid by the person who returns the property for taxation, nor by the legal owner thereof, the tax-collector, finding the property on the tax-receiver’s digest, has the right, and it is his duty, to issue an execution against the person who returned the same, have the same levied, and the property sold to pay the taxes due thereon. All property in this State, unless expressly exempted by the laws thereof, or by the laws of the United States, is subject to taxation, and must pay its pro rata part of the tax for the support of the government, in whosesoever hands it may be, .or whoever may return the same for taxation. It is not incumbent upon the State and county to investigate the legal title to property before assessing the same. The only duty of the tax-receiver of the State and county in regard to this matter is to see that all property, not exempted as above set out, is returned by some one. If it is not returned by the legal owners, but is re*385 turned by another, the State and county are entitled to taxes tbereon; and if tbe taxes are not paid by the person who returns the property for taxation, nor by the true owner thereof, the tax-collector, finding the return of the property on the receiver’s digest, has the right, indeed it is his duty, to issue execution against the person who returned the same and have it levied thereon. State v. Hancock, 79 Ga. 799 (5 S. E. 248); Barnes v. Lewis, 98 Ga. 558 (25 S. E. 589); Dawson v. Dawson, 106 Ga. 45 (32 S. E. 29). And the purchaser at such sale, if the sale is otherwise unobjectionable and free from fraud, will acquire good title to the land as against the true owner thereof.
Document Info
Docket Number: No. 5341
Judges: Beck, Hines
Filed Date: 12/21/1926
Precedential Status: Precedential
Modified Date: 11/7/2024