Long Realty Co. v. First National Bank , 177 Ga. 440 ( 1933 )

ON MOTION ROE EEHEAEING.

First National Bank moves for a rehearing in this ease, contending that the court overlooked the material fact shown by the record “that Ousley-Winn Company, the defendant in fi. fa., by and through its executive officers, pointed out for levy and sale, to the levying officers, respectively, each of the tracts of land levied on by such officers.” It is argued that the fact that the said tracts or parcels of land were so pointed out by defendant in fi. fa. requires a different judgment from that entered, “when given the legal effect to which said fact is entitled under the provisions of sections 1018, 1158, and 6028 of the Civil Code of Georgia of 1910,” and the rule announced in Lumpkin v. Cureton, 119 Ga. 64 (45 S. E. 729). The court agrees with movant that the provision of Code § 1158, and the ruling in Lumpkin v. Cureton, supra, would estop Ousley-Winn Company, who gave in the property for taxation, from making any complaint. Also, it would estop any one claiming under Ousley-Winn Company. In this case, however, neither Ousley-Winn Company nor any one claiming under that company is seeking any relief. The relief is sought by Long Realty Company, who does not claim under Ousley-Winn Company, but from Security Mortgage Company. Both Ousley-Winn Company and Long Realty Company derive title from Harrell, who executed a security deed to the Mortgage Company, thus conveying legal title, and after-wards sold his equity to Ousley-Winn Company. The latter company, according to the record, never owned the legal title. Obviously no act of Ousley-Winn Company can properly estop Long Realty Company from asserting any equitable right. This is especially true under the facts of this case, where it appears that Ousley-Winn Company gave in the property for taxation along with numerous other separate parcels of real estate owned by that company, and subsequently, for purposes of levy of a tax fi. fa., pointed out that property in which they owned only an equity and Security Mortgage Company held the outstanding mortgage, which was substantially the same in amount as the assessed value of the property as returned for taxation by Ousley-Winn Company. We thiúk it obvious that neither of the code sections mentioned leads to a different result.

It was contended that the court overlooked one other fact, but at the same time the movant admitted: “The misunderstanding of the court with reference to the allegations of the petition in this particular respect might not, of itself, be material.”

For these reasons the judgment already rendered is adhered to.

Rehearing denied.

All the Justices concur, except Hill, J., absent because of illness.