Sumter County v. Hollis

Guekry, J.,

concurring- specially. I agree with the principle stated, that the cottonseed were not subject to taxation, but were subject to the payment of taxes accrued on other property. I think, however, that these cottonseed not being themselves subject to taxation and being placed as they were ginned in Marion County, Georgia, they did not therefore become so subject to a tax fi. fa. from Sumter County, Georgia, as to take precedence over a bona fide purchaser from the owner. In other words, Mrs. McGarrah owed taxes in Sumter County, Georgia for the year 1931, which were not paid on December 20, 1931, and a fi. fa. was issued therefor. Her property in Marion County, as provided in the Code of 1910, § 1174 (“If there is not sufficient property in the county where the taxpayer resides to satisfy the taxes, property situated in any other county is the subject of levy and sale),” may be subject to such 11. fa., omitting any discussion as to a showing that there was no property in Sumter County sufficient to satisfy the fi. fa.: but I think the tax lien, in order to come ahead of an innocent purchaser of the property of Mrs. McGarrah in Marion County, should have the fi. fa.-recorded in Marion County. The fi. fa. is a lien on the property of the taxpayer located in Sumter County, so long as it remains unpaid. When it is paid by a third person and it is properly transferred, there must, under the Civil Code of 1910, § 1145, be a record of the fi. fa., even in Sumter County, in order for it to continue to take precedence over innocent purchasers. While it is true that “ Liens for taxes . . shall cover the property of taxpayers liable to tax” (Code of 1910, § 3333), this lien, as the other liens with which it is treated in § 3329 to § 3364 inclusive, refers to the establishment of liens in the particular county and is subject to the recording acts, except that a tax fi. fa. issued for State and County taxes and not transferred by the State or County need not be. recorded in the county where the property is situated for which the fi. fa. was issued. This provision should be limited to the jurisdiction .of the particular county. Hollis, in the present case, bought from Mrs. McGarrah personal property, cottonseed not at the time subject to taxation. He was an innocent purchaser for value. The records of Marion County where the property was located showed no lien against the property. Any unpaid taxes due Marion County at the time by Mrs. McGarrah would have subjected the property. I think the judgment sustaining the claim was proper, not on the ground that the cottonseed itself was exempt from taxes, although it may have been exempt from taxation, but on the ground that Hollis was an innocent purchaser. Chattel mortgages, under the Civil Code (1910), § 3259, to be binding against an innocent purchaser must be recorded in the county of the residence of the mortgagor, and if located at the time of the mortgage in some other county, and not that of the mortgagor’s residence, in the county where the property is located. A judgment lien must be on the general execution docket of the county of the residence of the defendant in fi. fa. Code of 1910, § 3321. It does not take priority over transfers without this. If the defendant in fi. fa. has property in another county, the judgment must be recorded on the general execution docket there also.