Lowe v. City of Atlanta

ON MOTION FOR REHEARING. While it is true, as contended by movant, that she was brought into this case as a defendant by an order of the court at the instance of other parties, over her objection, she filed no exception to the order making her a party, and after this order she filed a cross-action seeking affirmative relief, to wit, cancellation of the tax deeds referred to in the original opinion. It may be true that in the circumstances, having become a party involuntarily, she would not have been required to make a tender of the amount of taxes due before pleading — as inWilliams v. Fouche, 157 Ga. 227 (121 S.E. 217), yet we think it was incumbent upon her at least to make such a tender in the pleadings which she then filed, before she would be entitled to the affirmative relief of cancellation. To this extent she could have complied with the rule that he who would have equity must do equity.

In the brief in support of the motion for rehearing extended comment is made on the dilemma in which the movant was placed with respect to the amount of taxes, if any, which she ought to have tendered. It is pointed out that if the sales under the tax executions were treated as valid, as contended by the taxing authorities, then after such sales no taxes could accrue as against the movant; and that in any event none were lawfully assessed. Since no tender of any sum whatever was made, it was unnecessary to determine whether, if a tender had been made, it should have included taxes claimed by the taxing authorities after the sales and execution of the tax deeds in pursuance thereof. Our decision goes no farther than to say that the movant should at least have tendered the amount of the taxes involved in the tax deeds. Since neither this nor any other amount was tendered, the cross-actions filed by the movant were properly stricken on demurrer, regardless of whether she should have tendered other sums claimed by the taxing authorities.

What has just been said as to tender will now be qualified to this extent: If we should assume that where the property had been sold under execution for state and county taxes, and a deed made in pursuance thereof, the municipal authorities could not thereafter have sold the property so as to divest any title or interest of this movant, and that in these circumstances the plaintiff in error would not have been required to make any tender to the municipality, yet the only attack which is made on the tax sale and the tax deed in pursuance of a levy for state and county taxes is that the levy was excessive. And without a tender as to this transaction the plaintiff in error would not be entitled to cancellation of this latter deed. And if she can not have this deed canceled, she would be without such right or interest in the real estate as to authorize her to maintain an action for cancellation of the city marshal's deed. In Cooper v. Peevy, 185 Ga. 805 (supra), it was held: "He who would have equity must do equity, and give effect to all equitable rights in the other party, respecting the subject-matter of the suit. Upon application of this principle, the plaintiffs in the instant case were not entitled to the equitable relief sought as to one of the deeds which they prayed to have canceled; and, without a cancellation of that instrument, the plaintiffs did not have such interest in the land as to entitle them to a cancellation of the other deed referred to in the petition. The court did not err in directing the verdict in favor of the defendant."

While it is further true that the plaintiff in error did deny some of the allegations contained in the pleadings of the other parties against whom she is now seeking relief of cancellation, and these denials might in other circumstances have put the burden of proof on such other parties as to material allegations, yet, from the whole pleadings of the plaintiff in error and these other parties against whom she sought to proceed in her cross-action, the facts appear without dispute as they were dealt with in the original opinion. Counsel for movant refers to the general rule that a court of equity will not aid the State or a county or city in the collection of taxes, an adequate remedy being provided by law. Whether or not this rule may be subject to exception (Georgia Power Co. v. Decatur, 179 Ga. 471 (7) (176 S.E. 494), the pleadings of the taxing authorities in the present case, in so far as they may have sought the aid of a court of equity for such purpose, had reference to tax claims other than those which had culminated in the tax deeds already held by them and under which they were claiming title after expiration of the period of redemption. Under the facts alleged in their pleadings they did have title as contended, unless the tax deeds were invalid for some reason as claimed by the plaintiff in error. Unless she were able by sufficient allegations to show these deeds invalid and obtain cancellation of them, respectively, she would have no such interest in the property as would entitle her to oppose the aid sought by the taxing authorities as to other taxes relating to this property. It is further contended by movant that no tender of any sum as taxes should have been required of her, in view of the principle ruled in Newsome v. Dade County,177 Ga. 612 (171 S.E. 145). In that case an owner of property which had been sold for taxes was seeking merely to protect his right of redemption during the twelve-months redemption period; and it was held that in such case the owner was not required to tender the amount of taxes, or any other amount, in order to maintain the suit. In the opinion it was said that the owner had a right to redeem the property at any time within the twelve-months period, and was in the meantime entitled to such a preservation of the status as would prevent encumbrances or involvement of his right to redeem. The plaintiff there was not seeking cancellation, but was treating the sale as valid, and the time had not arrived for payment of the sum necessary to redeem. The principle of that decision has no application here.

As to the form of the tax deeds executed by the sheriff and the marshal, we think now, as before, that there was nothing in either deed to limit the conveyance to a mere leasehold interest. The lessee was not only authorized by the original lease to return for taxation the entire property or estate in this tract, but was actually bound to do so under the terms of the contract as between the lessor and the lessee. The lessee was thus necessarily made the agent of the lessor for this purpose; and being in lawful possession of the property, the return made by such lessee of the entire estate authorized execution against such lessee as the party making the return, and would further authorize a sale of the whole interest in the tract as the property of such party. Especially is this true when the lease contract did not stipulate in whose name the property should be returned. Now if these things are true, the tax deeds would not have the effect of limiting the conveyances merely to the leasehold estate, simply because they recited that the property was to be held by the grantee only in as full and ample a manner as the same had been owned or held by the defendant in execution, who in this instance happened to be the lessee, because the return had been made in the name of that party. Let us suppose, for instance, that a husband is in possession of a tract of land with his family, and he is in general charge and management of it as agent of his wife, and that the property is actually the property of his wife. The husband returns the property in his own name, and his wife is in no way mentioned. If the taxes are not paid, execution would naturally be issued against the husband. If a sale was made, the recitals in the tax deed would naturally refer to the husband as the defendant in execution, and would finally and properly say that the grantee should have and hold the property in as full and ample a manner as it was held and enjoyed by such defendant in execution. All of this would be in accordance with previous decisions by this court as to tax sales following returns in such manner. See authorities cited in the original opinion. Assuredly it would not be claimed that in such instance the tax deed did not convey anything except such interest as the husband may have had as against the wife. On the contrary, for all purposes as between him and his wife on one side, and the taxing authority on the other, he would be treated as the owner of the entire estate, just as it was returned by him for taxation. The tax deeds involved in this case are in the usual form. The statements contained in them as to the title or interest conveyed were inserted, not for the purpose of reducing the quantum of interest below the quantum which had been returned for taxation, but rather for the purpose of avoiding a warranty or an effort to sell a greater interest than was owned or held by the defendant in execution, who in these instances must be treated as owning or holding the entire interest for the purposes of taxation, in view of the authority granted by the owner and the return actually made of the entire estate under such authority.

We have said that these deeds are in the usual form in referring to the property conveyed as that of the defendant in execution. In support of this statement we quote: "The sheriff, in conducting a sale under execution, acts as the agent and representative of the defendant in execution, and can sell no greater interest in the property than the defendant in execution could convey." Cooper v. Davis, 174 Ga. 670, 673 (163 S.E. 736); Dozier v. McWhorter, 113 Ga. 584, 587 (39 S.E. 106);Harber v. Nash, 126 Ga. 777, 778 (55 S.E. 928). As indicated above, the defendant in execution here is to be treated as the owner of the whole estate for the purpose of taxation. It is pressed upon us that the returns were made by the lessee. To take one of them as an example, it is headed "W. F. Winecoff (Lessee)." The oath is signed "W. F. Winecoff." The entire property is returned, not merely the leasehold interest. Suppose these returns do show that he returned it as lessee. How else could he have returned it? He was not the owner; and yet he was in possession under a contract with the owner to pay the taxes, the owner herself not returning it. The word "lessee," as it appears after the name in the heading of the return, might be considered as merely description personae; but the most that could be said of it is that it only attempts to show the character or capacity in which the person was acting, not that it indicates that only a leasehold interest is being returned. The whole return shows that Winecoff as lessee was making the return in compliance with the duty and authority assumed by him under the lease contract; and the legal consequences would be that the entire estate would be subject to execution and sale if the taxes were not paid in accordance with such return.

In view of what has been said here and in the original opinion, it is immaterial whether the lessee had merely an option to purchase, or under the terms of the contract had become bound to purchase the real estate in question. That contract in any view authorized and bound him to return the entire estate for taxation, and returns were made while the lessee was in possession. In referring to the question of agency we do not mean to imply that he was an agent for any purpose except for the return of taxes; and to that extent he was an agent both with plenary power and imperative obligation.

The foregoing observations cover the main points urged in the motion for rehearing; and on the whole we are of the opinion that none of the grounds of the motion show any substantial reason why a different opinion or judgment should be rendered.

Rehearing denied. All the Justices concur, except Reid, C.J., and Jenkins, J., who adhere to the views heretoforeexpressed.