Durham v. Crawford

1. In this action of ejectment by a former owner, to recover land held by the defendant under a tax sale and deed to a county, made in 1928, and a deed from the county to the defendant, questions as to the time for redemption must be determined under the law before the acts of 1937. Ga. L. 1937, pp. 446, 448, 491, 492; Ann. Code. 1933. §§ 92-8301 et seq., 92-8201, 92-8202.

2. Under the former law where county authorities did the land in for state and county taxes, the time for redemption did not expire until twelve months after the county paid to the State its portion of taxes due from the county's bid, which payment, by stipulation of the parties in this case, did not occur until September 22, 1941.

3. Under the former law, the purchaser at a tax sale acquired a defeasible title, under which he was entitled to a deed from the officer selling the property; and he could convey his own defeasible title to another person, subject only to the right of redemption by payment during the twelve-months redemption period of the taxes as paid by the purchaser at the tax sale, with ten per cent. Premium thereon. If this amount was thus paid or sufficiently tendered, such payment or tender revested title in the owner; otherwise, at the expiration of the redemption period, title became absolute in the purchaser or his grantee.

4. Under the rule of res judicata, pleaded by the defendant, on account of rulings adverse to the plaintiff in her previous equity suit to cancel the tax deed and for other relief, the plaintiff was precluded from showing in her present ejectment suit any tenders of taxes, made before her previous suit, which she either pleaded or could have pleaded therein; but she was not precluded by the rule of res judicata from showing two other alleged tenders made after her previous litigation.

5. Since the right to recover in ejectment depends upon the plaintiff's title when suit is brought, without benefit from any subsequently acquired title, the two alleged tenders here made during the pendency of her suit were ineffective.

(a) The first of such alleged tenders, made after suit was instituted but before the trial, was insufficient, since it was not continuous, and no money was brought into court when the suit was filed.

(b) The first tender was ineffective, for the additional reason that it was made to the county, the purchaser at the tax sale, instead of to its grantee after he had paid the full tax money and consideration to the county, and the plaintiff knew such status of the property.

(c) The second tender, made at the trial by draft on a bank in another State, which was deposited with the clerk of the court, was ineffective for the additional reason that it was an insufficient tender.

6. The court properly directed the verdict for the defendant, and there is no merit in the special exceptions dealt with in the opinion, infra.

7. The preceding holdings render it unnecessary to decide whether the defendant was entitled to a directed verdict for additional reasons, as contended.

No. 14531. JULY 8, 1943. In July, 1941, Mrs. C. B. Durham filed an action of ejectment against Charlie R. Crawford, to recover 552 acres of land in Oglethorpe County. She alleged ownership under deeds to her, and that the defendant claimed under R. O. Smith, the county commissioner of roads and revenues, by virtue of a tax deed from T. E. Watkins, but that this deed was void because the levy was excessive, since the tax fi. fas. amounted to only $661.79, and the land was worth $5,000, and the land was not sold in parcels. By amendment it was set forth that, although the county bid the land in for $677.29 at the tax sale in January, 1928, the sale was not completed by payment to the State of its proportion of the taxes until September 22, 1941. It was further alleged, that on February 25, 1937, the plaintiff tendered to the county $837.67, which was more than the bid of $677.29 plus ten per cent. Penalty of $67.72, making $745.02, but this tender was refused; that on October 7, 1941, within the necessary one-year period, the plaintiff again tendered $745.02 to the county and the board of commissioners of roads and revenues, but this tender was refused at a meeting in November, 1941; and that by reason of the tender "all the right, title, and interest" vested in the county by the tax sale was lost, and the effect of the tender was a redemption of the property.

The petition as amended thus not only sought relief on the ground of excessive levy, with averments that the plaintiff had previously made good tenders of the taxes paid by the county at the tax sale, plus the ten per cent. premium required by the redemption statute, a total of $745.02, which had been refused, but also expressly sought relief on the ground that by her tender to the county of this amount during the pendency of the suit, within the one-year redemption period, "all the right, title, and interest . . in said county by reason of said tax sale was destroyed and lost," and that "the effect of such tender was the redemption of said property from said tax sale." By another amendment on the day of the trial, the plaintiff alleged that she had tendered on that day to the defendant purchaser from the county a draft for $745.02, which had been refused; that she had deposited this draft with the clerk of the court, had paid the court costs, and she made this a "continuous tender."

The defendant pleaded res judicata as to all the alleged tenders and questions the plaintiff sought to raise and which she either raised or might have raised in the previous litigation; and pleaded other defenses. The judge directed a verdict against the plaintiff, and she excepted on general and special grounds. Her contentions are indicated in the opinion, infra.

On the trial, deeds and other evidence were admitted, showing that on January 3, 1928, after advertisement and sale, the sheriff executed the tax deed in question to R. O. Smith as commissioner of roads and revenues of the county, in consideration of the highest bid of $677.29; that on December 24, 1940, Crawford, the defendant, paid to the county $1,245.97, which was arrived at by adding seven per cent. interest to the $677.29 bid by the county at the tax sale, and the defendant received a deed from the county after a resolution by the county officials so authorizing. There was evidence that on the day of the trial, March 17, 1942, the plaintiff, by letter addressed to the defendant, tendered to him a draft or check, drawn by her on a bank in Greensboro, North Carolina, for $745.02. This draft was not indorsed by any one, and was deposited uncashed with the clerk of the court. The plaintiff paid the court costs. She introduced the draft referred to in her first petition as having been tendered before the filing of that petition, for $837.62, payable to the "tax-collector of Oglethorpe County or [the named] attorney for Oglethorpe County," drawn by the plaintiff's attorney on her through a North Carolina bank. On the question of excessiveness of the levy and the divisibility of the land there was evidence, though disputed, to sustain the plaintiff's contentions. There was additional evidence on other defenses, which under the rulings by this court it is unnecessary to state. Questions involved in the present case have been before this court in Durham v. Smith, 186 Ga. 565 (198 S.E. 734), and188 Ga. 233 (3 S.E.2d 719). 1. In this action of ejectment by an original owner of land against a purchaser from a county, holding under its deed to him and a deed by the sheriff to the county by virtue of a sale in 1928 for state and county taxes, the rights of the parties as to the time for a tax redemption are controlled by the law as it existed at the time of the tax sale (Park's Code, §§ 1169, 1170), and not by the present law under the act of March 31, 1937 (Ga. L. 1937, pp. 491, 493, 496; Ann. Code 1933, §§ 92-8301 et seq.), since sec. 3 of that act expressly provides that it shall not "apply to or affect any tax sale heretofore held or any tax deed now outstanding, as to which the sections of the Code hereby [repealed] shall remain of full force and effect." As to the time when the right of redemption expired after the county authorities bid the land in for state and county taxes, this case is also controlled by the previous (Park's) Code, §§ 1178, 1179, and the decisions thereunder as to the time when such tax sales were complete, from which the redemption period was computed, and not by the new act of March 27, 1937 (Ga. L. 1937, pp. 446, 448; Ann. Code, §§ 92-8201, 92-8202), providing an earlier time of completion, since the date of the tax sale in question preceded such act. BaxleyState Bank v. Douglas, 185 Ga. 743, 746 (196 S.E. 405).

2. Under the law preceding the act of March 31, 1937, a redemption was effected by payment to the purchaser within twelve months of the amount paid by said purchaser, with ten per cent. premium from the date of purchase to the time of payment. Code of 1910, §§ 1169, 1170. This time of limitation did not begin to run until the payment by the purchaser of the amount of his bid at the tax sale. Wood v. Henry, 107 Ga. 389 (33 S.E. 410);Zugar v. Scarborough, 186 Ga. 310 (2), 321 (197 S.E. 854). Where land was bid in by county authorities for state and county taxes, a sale made before the act of March 27, 1937 (Ann. Code, § 92-8201) was "not complete, and the owner [was not] in default in relation to redemption of the property . . until the [county authorities] paid the full amount of [the] bid including the taxes and interest due the State." Baxley State Bank v.Douglas, supra. The motion to overrule this unanimous decision, following the majority ruling in Newsome v. Dade County,180 Ga. 403 (179 S.E. 89), in which two Justices dissented, is denied. Accordingly, under the stipulation in the present case that the proceeds due to the State from the tax sale were not paid until September 22, 1941, the redemption period did not expire until twelve months from that date.

3. Under the previous as well as the present law, if the amount required by law is paid, or a proper tender thereof is made, within the redemption period allowed, the effect was and is "to put the title conveyed by the tax sale back into" the owner. Park's Code, § 1170; Ann. Code 1933, § 92-8302; Bennett v.Southern Pine Co., 123 Ga. 618, 621, 622 (51 S.E. 654), and cit.; Lamar v. Sheppard, 84 Ga. 561 (2), 568 (10 S.E. 1084). Under the previous law controlling this case, before such a proper payment or tender the purchaser held a defeasible title, subject to the right of redemption; but the fact that the title was defeasible did not prevent him, during the redemption period, from receiving a deed from the officer selling the property, or from conveying to another his own defeasible title; and this title, by operation of law, became absolute in him or his grantee when the redemption period expired. Braswell v. Palmer, 191 Ga. 262 (11 S.E.2d 889); Verdery v. Dotterer, 69 Ga. 194 (2), 198;Bennett v. Southern Pine Co., Supra; Elrod v. OwensboroWagon Co., 128 Ga. 361, 364 (57 S.E. 712); Jones v.Johnson, 60 Ga. 260; Elrod v. Groves, 116 Ga. 468 (42 S.E. 731); Beckham v. Lindsey, 22 Ga. App. 174 (95 S.E. 745).

4. Under the former judgment on general demurrer to the previous equitable petition against the county and the sheriff, seeking to have the tax deed in the present case declared void and canceled, the plaintiff in the instant action of ejectment, who was also the plaintiff in the previous case, was bound by the judgments and decisions against her, not only as to what she alleged in her former suit, but by what she could have alleged by way of amendment. Code, § 110-501; Redwine v. Frizzell,186 Ga. 296, 299 (197 S.E. 805), and cit.; Sumner v. Sumner,186 Ga. 390 (2) (197 S.E. 833); Dunton v. Mozley, 42 Ga. App. 295 (155 S.E. 794), and cit. The essential questions in both cases concerned not only the alleged excessiveness of the levy, but the sufficiency of the tenders as made by the plaintiff. In the previous litigation the trial court and this court held that the tenders there alleged were insufficient.186 Ga. 565, 188 Ga. 233, supra. These judgments and decisions bind the plaintiff both as to the tenders which she then pleaded and as to any tenders then made which she could have then pleaded.

However, the plaintiff in the present litigation sought to show two tenders made subsequently to the previous litigation: (1) a tender of the taxes paid by the county at the tax sale, plus the statutory ten per cent., a total of $745.02, made to the county on October 7, 1941, during the pendency of the present suit; and (2) a tender of a draft for the same amount, which after refusal was deposited with the clerk of the court as an alleged "continuous tender" made to the defendant at the trial.

On the ground of excessive levy, and under the previous holding in Durham v. Smith, supra, that the plaintiff, in order to have relief on that ground, must have tendered to the purchaser "the amount paid by such purchaser, with interest," the first question presented is whether, on the ground of excessive levy, the doctrine of res judicata bound the plaintiff in her subsequent suit, so as to preclude her from later making and alleging any subsequent tender; that is, under the rule in excessive levy cases that he who seeks equity must do equity, necessitating that the plaintiff should make and allege a sufficient tender before seeking to set aside the alleged excessive levy, whether she should not only have made such a tender before the previous suit, but whether her failure to do so would prevent any future tender as a basis for this subsequent suit or the ground of excessive levy.

Such an extension of the effect of the previous judgment, however, would seem contrary to the general rule that a former judgment binds only as to the facts in issue and events existing at the time of such judgment, and does not prevent a re-examination even of the same questions between the same parties, if in the interval the material facts have so changed or such new events have occurred as to alter the legal rights or relations of the litigants; although, in the absence of evidence to the contrary, the facts as they existed at the time of the former judgment would be presumed to continue. 34 C. J. 905, § 1313; 30 Am. Jur. 943, § 206; and cit. Under an analogous situation, involving a former judgment in a claim case in favor of the claimant, because the defendant in fi. fa., on account of an outstanding security deed, then had no leviable interest in the land, and because the plaintiff in fi. fa. had not previously paid or tendered the balance due on such deed, this court has held that such a judgment did not preclude the plaintiff in fi. fa. from subsequently making a good continuous tender to the security deed holder, thereby giving to the debtor a leviable interest, so that on showing this in an equitable petition the property could be subjected. McLendon v. Shumate, 128 Ga. 526 528 (57 S.E. 886). In the opinion it was said that while the judgment in the former claim cases concluded both the claimant and the plaintiff in fi. fa., "not only as to the question actually tried, but also such as might have been made upon the trial," yet "the balance due . . had neither been paid nor tendered when the levy in the former case was made, and therefore the status of the title after such payment or tender could not have been in issue. The matter adjudicated by that decision was that the property was not then subject. . . How, then, can [the plaintiff in fi. fa] be concluded by a judgment which merely adjudicates that his former levy was void because the defendant in fi. fa. had no leviable interest at the time of the levy, when, subsequently to that levy, by tender of the balance due . . a leviable interest has been created."

(a) On the other ground of the petition, that the plaintiff's tenders to the county and its purchaser, the present defendant, effected a redemption of the property under the tax-redemption statutes as they existed at the time of the 1928 tax deed, and that the plaintiff thereupon acquired good title and the county and its purchaser lost their defeasible title, — especially would the rule of res judicata not operate to bar the plaintiff from making and showing any new tenders made after the previous litigation, so as thereby to redeem the property and effect a revesting of title in her, without regard to any question as to excessiveness of the levy. This is true since, under the preceding ruling, the plaintiff's right of redemption, regardless of the previous suit, continued until twelve months after the county authorities paid to the State, on September 22, 1941, its part of the proceeds of the tax sale; and since a judgment as to title is not conclusive as to a new title acquired after the rendition of such judgment. Forrester v. Lowe, 192 Ga. 469 (15 S.E.2d 719); 34 C. J. 943, and cit.

(b) Accordingly, under either theory of the present action, the plaintiff was not precluded by the rules of res judicata from making and showing good tenders of the taxes paid by the county for the tax deed, plus the required ten per cent. premium, which might have been made after the previous equity suit and within twelve months from September 22, 1941; but the sufficiency and effect of these alleged tenders are controlled by other legal principles, which are next dealt with.

5. The rule is well settled, that, "when an action is brought for the recovery of land either under the common-law from or under the Code, the plaintiff must recover, if at all, upon the state of the title as it subsisted at the commencement of the suit;" and that "evidence of any after-acquired title is wholly inadmissible" and ineffective to prove the required title. Deas v. Sammons, 126 Ga. 431 (55 S.E. 170, 7 Ann. Cas. 1124);Lee v. Pearson, 138 Ga. 646 (75 S.E. 1051); Hall v.Simmons, 125 Ga. 801 (2) (54 S.E. 751); L. N. R. Co. v. Ramsay, 134 Ga. 107 (2), 110 (67 S.E. 652); U.S. F. G. Co. v. Tucker, 165 Ga. 283, 286 (140 S.E. 866); Elmore v. Thaggard, 130 Ga. 701, 705 (61 S.E. 726). It is also the general rule, under the maxim that he who would have equity must do equity (Code, § 37-104), not only that the party seeking equitable relief shall have paid or tendered the sum due to the other party, but that he shall have done so "before the filing of the suit, unless the tender or offer to restore be excused upon some equitable ground." Harton v.Federal Land Bank of Columbia, 187 Ga. 700 (2 S.E.2d 62);Clisby v. Macon, 191 Ga. 749 (13 S.E.2d 772); Williams v. Fouche, 157 Ga. 227, 229 (121 S.E. 217). Since in this action of ejectment the plaintiff's right to recover the land depended upon the status of the title when the suit was brought, and the plaintiff could not recover on a revesting of the title in her after the filing of the action, both of the tenders made during the pendency of her suit, one to the county in October, 1941, and the other to the defendant purchaser from the county on the day of the trial, were ineffective.

(a) Moreover, a tender on an offer to redeem property from taxes not only "must be made in due time and manner," but "be continuous," with "a continuous offer to pay;" and if such continuity is not otherwise shown, at least the bringing of the money into court on the filing of the suit is necessary in place of the continuous offer by pleading." Clower v. Fleming,81 Ga. 247 (3), 253, 254 (7 S.E. 278). For this reason, the first of the alleged tenders mentioned was insufficient, since it was not shown to be continuous, nor was any money brought into court when the complaint for land was filed.

(b) The first tender was insufficient for the additional reason that the record shows it was made to the county authorities after they had sold to the present defendant their defeasible title, had received from this defendant the tax money consideration, and had executed to him a deed; and under the averments of the present petition, the plaintiff knew of this conveyance changing the status of the property, and should have tendered the money to the defendant grantee.

(c) The second tender, made at the trial, was insufficient, for the additional reason that it was made merely in the form of a draft drawn on the bank of another State, payable to the order of the defendant, and unindorsed. Whether or not such a draft could constitute a valid tender, in lieu of a legal tender by money, on the theory that the failure of the defendant to object to the form of the tender constituted a waiver of legal tender, still, under the requirement either that a continuous good tender be made or that the actual money be paid into court, the mere deposit of such a draft with the clerk would not under any view suffice, since the draft was not indorsed, since its payment could be stopped or refused, and since there was no showing that the plaintiff had sufficient funds on deposit with the drawee bank for payment of the draft. As to the requirements of a valid tender or waiver of legal tender, see Code, § 20-1105; Clower v. Fleming, supra; Baldwin v. McLendon, 164 Ga. 387 (2), 390 (138 S.E. 775); Roberts v. Mayer, 191 Ga. 588 (2), 590 (13 S.E.2d 382), and cit.; Holland v. Mutual FertilizerCo., 8 Ga. App. 714 (2, 3), 717 (70 S.E. 151); Manry v.Phanix Mutual Life Insurance Co., 42 Ga. App. 24 (2), 27, 29 (155 S.E. 43); Jones v. Peacock, 29 Ga. App. 240 (114 S.E. 646); and cit.

6. Under the preceding holdings, the court did not err in refusing a new trial, or err in directing the verdict. There is no merit in other special grounds — one as to the exclusion of oral testimony that the plaintiff made a tender to the county in October, 1941, since the identical facts were stipulated by both parties, and such facts have been here held ineffective to revest the required title in the plaintiff or to show a valid tender, for the reasons stated. As to the other ground — the exclusion of testimony that $1,000 had been tendered to the county before the previous equity suit was filed, the rule of res judicata precluded the plaintiff from relying in the present suit on such a tender, since it could have been shown in the previous suit.

7. Since, under the foregoing rulings, the verdict for the defendant was demanded, and the judge did not err in so directing, it is unnecessary to consider the contention that the plaintiff, for additional reasons, was precluded from a recovery.

Judgment affirmed. All the Justices concur.