Akin v. Alatoona Iron Works

Warner, Judge.

This was a claim case in favor of Warren Akin, executor of Clayton, plaintiff in Ji. fas., against McConael and Strickland, defendants, and McDaniel, claimant. The Court, on motion, dismissed the plaintiff's levies, on the ground that the taxes had not been paid on the judgment debts, as required by the Act of 1870, on the following admitted statement of facts: That plaintiff's testator, Clayton, died in November, 1864; that Akin, as his sole executor, was qualified as such on the first Monday in November, 1865, and as such executor, had paid all legal taxes due on said executions since he was qualified as such executor; but that said Akin had not sworn and could not swear, that the legal taxes had been paid on the debts due on said executions prior to his qualification as such executor, and this was the only question submitted to, and decided by the Court. The Court held and decided, that the Act of 1870, required the plaintiff, as executor, to swear that all legal taxes chargeable by law on the debts on which the judgments and executions were founded, had been paid from the time of making or implying of the contracts on which the judgments and executions were founded. Whereupon, the plaintiff excepted. The testator died prior to the passage of the Act of 1870, and his executor could nqt swear as to what he had done in relation to the payment of taxes on these debts in his lifetime. The testator could not swear as to that fact, for the obvious reason that he was dead. The presumption, however, is, in the absence of any evidence to the contrary, that the testator, when in life, performed all his legal and social duties, and therefore paid all the legal taxes chargeable by law on these debts, and in view of the statement , of facts contained in this record, we think the Court erred in dismissing the levies of the plaintiff’s executions.

Let the judgment of the Court below be reversed.