1. Although the value of a house and lot is much greater than the amount due on a tax execution levied thereon, the levy will not be declared excessive unless the lot is capable of subdivision for the purpose of sale.
2. The fact that a tax sale embraced the entire fee to land in which the defendant in execution had only one third undivided interest is not ground for setting aside the sale at the instance of the defendant in execution or his grantee. The title of the persons owning the remaining undivided interests in the land is not affected by such a sale, and such persons are not entitled to have the deed declared void as to the interest of the defendant in execution.
3. The mere misstatement of the lot or district number will not render the description in a sheriff's levy and deed void, if, notwithstanding such error, the land is so definitely described as to be readily identified.
No. 13591. MARCH 14, 1941.
On December 1, 1925, Mrs. Vashti E. Schofield, Mrs. Tibbie R. Schofield, and F. O. Schofield borrowed $4000 from Walter H. Turpin, and gave as security therefor a loan deed to a described lot of land in the City of Macon. Each of the borrowers had one third undivided interest in the property conveyed. The property was returned for state and county taxes for the years 1931 and 1932 in separate accounts, Mrs. Vashti E. Schofield returning her one-third interest and F. O. and Mrs. Tibbie R. Schofield jointly returning their two-thirds interest in the property. The taxes assessed against F. O. and Mrs. Tibbie R. Schofield were duly paid, but those assessed against Mrs. Vashti E. Schofield were not. The property was levied on to satisfy the executions against Mrs. Vashti E. Schofield, and was sold thereunder on January 12, 1934. Bibb County bid in the property for $429,18, and received a sheriff's deed describing the property as follows: "House and lot in the Vineville District known as 758 Cherry Street. Bounded on one side by Cherry Street, on another side by Hirsch-Harrold-Kahn; on another side by an alley, and on the other side by Methodist
Home." The grantee in the security deed, Walter H. Turpin, was out of the State at the time of the levy and sale, and no notice was given to him or his agent or his attorneys of the levy and sale, and they had no knowledge of the sale until more than a year after it had been made. On January 25, 1935, the grantors in the security deed quitclaimed the property described therein to Walter H. Turpin. In April, 1935, Turpin came to Macon and made an investigation of the tax situation with respect to the property, and then for the first time learned of the tax deed to Bibb County. He immediately wrote to the attorney for Bibb County, offering to pay "all taxes due up to that time on the property involved," but the county declined to accept payment; and although he has been ready and willing to pay the taxes and proper interest thereon and has made a continuing tender thereof, the county has consistently refused to accept the same. Bibb County has brought statutory proceedings against Turpin to obtain possession of the property under the tax deed. Alleging substantially the facts just stated, Turpin filed a petition seeking to enjoin the county and its sheriff from interfering with his possession, to cancel the tax deed, and asking that he be allowed to pay the amount of taxes which the court should find to be due. It was alleged that the levy of the tax fi. fas. and the tax deed were void, for the following reasons: (1) The levy is grossly excessive, in that the property is worth at least $7500. (2) The description used in the levy and deed is fatally defective, in that it recites that the lot is in the Vineville District, whereas it is not in that district, and the boundaries given are so vague and indefinite as not to mean anything, especially the boundary "Methodist Home," since there is no Methodist Home adjoining or near the property of petitioner. (3) Although the defendant in fi. fa. owned only a third interest in the property and her tax return so showed, the levy and sale purported to deal with and convey the entire title to the property.
Bibb County demurred generally and specially to the petition. The court sustained the general demurrer, and dismissed the action. The petitioner excepted.
1. While the petition alleges that the defendant's tax deed is void because the levy was excessive, it is not alleged that the city lot levied upon was capable of subdivision.
In the absence of such an allegation, the petition was fatally defective in so far as it sought to allege that the tax sale was void for excessive levy, even though it was alleged that the value of the property was much greater than the amount due on the tax fi. fa. Miller v. Jennings, 168 Ga. 101 (3) (147 S.E. 32); Baxley State Bank v. Douglas, 185 Ga. 743
(196 S.E. 405).
2. The defendant in fi. fa. owned only one third undivided interest in the property, and her tax return so showed. The owners of the other two thirds had separately returned and paid the taxes due on their interests in the property. However, the levy and sale to satisfy the tax execution purported to deal with the entire fee to the lot; and it is contended that this rendered the sale void. The plaintiff relies upon Whatley v. Newsom,10 Ga. 74, Simms v. Phillips, 51 Ga. 433, Torbit v.Jones, 145 Ga. 610 (89 S.E. 696), and Schulte Inc. v.Varron, 181 Ga. 542 (182 S.E. 912), to support his contention. In each of those cases the levies purported to deal only with the interest of the defendant in the property levied on, and the defendant's interest therein was so indefinitely described as not to properly inform prospective bidders of the property to be sold. Obviously a sale under such a levy might work an injury to the defendant. Such is not true in the instant case. The levy under attack definitely described more than the defendant owned, and he can not complain of this. As was stated in Conley v. Redwine, 109 Ga. 640, 651 (35 S.E. 92, 77 Am. St. R. 398), where the levy included property owned by a third person, "the only effect of embracing in the levy and sale more property than the defendant owned would be to increase the proceeds of the sale, and to this extent benefit . . the owner of the property which was being sold." That case is clearly analogous to the one at bar. See also Perkerson v. Overby,59 Ga. 414. A sale under a general tax execution conveys no greater estate than the defendant in fi. fa. has in the property.Howell v. Lawson, 188 Ga. 164 (3 S.E.2d 79); Dooley v.Bohannon, 191 Ga. 7 (11 S.E.2d 188). Therefore, under the facts alleged in the instant case, the sale did not affect the title of the owners of the other undivided interests in the property, on which the taxes had been paid. Since the title of these third persons was not affected by the sale, the petitioner as their grantee is not entitled to have the deed canceled in so far as it relates to the interest of the defendant in execution.Stone
v. Franklin, 89 Ga. 196 (3) (15 S.E. 47). If the purchaser at the sale attempts to obtain possession of the entire property, the petitioner has an adequate remedy at law with which to protect his title to two thirds of the property.
3. The sheriff's levy and deed described the property as follows: "House and lot in the Vineville District known as 758 Cherry Street. Bounded on one side by Cherry Street, on another side by Hirsch-Harrold-Kahn; on another side by an alley and on the other side by Methodist Home." The petition alleges that the property in question is located in Macon, Bibb County, Georgia, and it is not alleged that the levy and deed failed to properly give the city, county, and State in which the property was located. The record does not contain a copy of the levy or deed. In these circumstances it must be assumed that the description is sufficient in these particulars. It is alleged that the description is bad, because the lot is not in the Vineville District, and because there is no Methodist Home adjoining or near the property. A levy on land which fails to describe it with such precision as to inform the purchaser of what he is buying, and to enable the officer selling it to place the purchaser in possession, is void. Burson v. Shields, 160 Ga. 723
(129 S.E. 22); Leathers v. Garrett, 179 Ga. 619 (176 S.E. 638). However, the mere misstatement of the lot or district number will not in itself render the description void, if, notwithstanding such error, the land can be readily identified. Boggess v.Lowrey, 78 Ga. 539 (3 S.E. 77, 6 Am. St. R. 279); Burson
v. Shields, supra. It does not appear from the petition that the house and lot levied on could not be identified by the use of the other descriptive words used in the levy. The property is described as being that known as "758 Cherry Street." It is not alleged that there is any other property in the City of Macon which will fit this description. The levy purports to give the boundaries, and it is admitted that three of the boundaries are correct; but it is alleged that the description is inaccurate in that it states that the property is bounded on one side by "Methodist Home." While it is alleged that the Methodist Home does not adjoin the property of petitioner, it is not alleged that the adjoining property does not belong to the Methodist Home, and the form of description is such that it may be construed to mean "property of the Methodist Home," for it is not an uncommon practice to give the boundaries
to land by merely naming the adjoining landowners. Furthermore, the land is levied upon as belonging to the defendant in fi. fa.; and since the levy gives its boundaries as a street on one side, an alley on another, and named parties on the other two sides, this is equivalent to describing it as "all the land belonging to the defendant" and known as 758 Cherry Street. In such circumstances it is not important that one of the four boundaries is erroneous in that the name of the adjoining owner is incorrect. The description clearly shows that the land levied on extends in the direction indicated to the limit of defendant's land, and therefore it is unimportant whether or not the name of the adjoining owner is correctly given. We conclude that the description was sufficient to readily identify the land. The petition failed to state a cause of action for any of the relief sought, and the court did not err in sustaining the demurrer.
Judgment affirmed. All the Justices concur.