Opinion
14783
December 6, 1938.
Before GREENE, J., Spartanburg, June, 1938. Order affirmed.
Action by George S. DePass against the City of Spartanburg and others to set aside the sale of certain real estate by the tax collector of the City of Spartanburg and to enjoin the city authorities from conveying title to the property and from taking any steps toward consummating the sale. From an order dismissing the demurrer and granting the relief prayed for, the defendants appeal.
The order of Judge Greene directed to be reported follows:
Upon hearing of the demurrer, Hon. G.B. Greene, presiding Judge, filed the following order:
This matter came before me at Spartanburg on a summons and complaint duly served by the plaintiff and a demurrer duly filed by the defendants.
Plaintiff alleges that certain property which is owned by him was sold on June 7, 1937, by J.H. Rothrock, tax collector of the City of Spartanburg, to satisfy city taxes on said property for the years 1930 through 1935. Plaintiff attacks said sale upon three grounds:
1st. That there was no seizure or levy upon the property as required by law.
2nd. That the lien for the taxes for the year 1933 and years prior thereto had expired.
3rd. That the penalties attached to the taxes attached to the executions were null and void.
Plaintiff asks (a) that the tax sale be declared null and void and set aside. (b) That the lien for taxes for the years 1933 and years prior thereto be declared lapsed and expired. (c) That the penalty added to the taxes for the years 1934 and 1935 be declared illegal. (d) That the defendants, City Council of City of Spartanburg, T.W. Woodworth, Mayor; J.A. Wood, A.N. Willis, L.T. Cothran, and R. Fred Maddox, commissioners, and their agents and servants, I.T. Williams and J.H. Rothrock, or their successors, be permanently enjoined from conveying title to the City of Spartanburg or any other person under and by virtue of said sale, and from performing any further acts toward consummation of said sale.
The defendants filed a joint and several demurrer to the complaint upon the grounds:
1st. That the Court has no jurisdiction of the subject-matter in that (a) the Court cannot issue an injunction to restrain the collection of taxes, and, (b) that it does not appear that plaintiff does not have an adequate remedy at law.
2nd. That the complaint fails to state facts sufficient to constitute any cause of action in that (a) it does not appear that plaintiff has no adequate remedy at law. (b) That plaintiff has not tendered payment of taxes admittedly due. (c) That the defendants, City Council of City of Spartanburg; T.W. Woodworth, Mayor; J.A. Wood, A.N. Willis, L. T. Cothran, and R. Fred Maddox, commissioners; and I. T. Williams, city clerk and treasurer, are either necessary or proper parties.
3rd. That there is a misjoinder of parties defendant, in that it does not appear that the city council and commissioners as named are either necessary or proper parties.
Taking up the grounds of demurrer in order, it seems that the first ground of demurrer has been specifically decided in the recent case of Home Building Loan Association v. City of Spartanburg, 185 S.C. 353, 194 S.E., 143, a similar case to the present case. The Court said in the opinion written by the Circuit Judge and adopted by the Court (page 149):
"There is another reason why such action can be maintained to restrain issuance of deed. The city undertook through the means of execution and sale to collect taxes which did not constitute a lien on the property, because the duration of the lien had expired.
"There is no remedy to pay said taxes under protest. In the Bomar case ( Bomar v. City of Spartanburg, 181 S.C. 453, 187 S.E., 921), the Court said: `Section 2846 gives the right to a person who protests the payment of taxes because he conceives that they have been unjustly or illegally assessed and collected to bring action for the refund of such taxes, but nowhere in that section, or elsewhere, is the right given to sue for the refund of taxes, the lien of which has expired.'
"If there is no remedy to pay under protest, it is well settled that the collection of the tax can be enjoined. In Santee River Cypress Co. v. Query et al., 168 S.C. 112, 167 S.E., 22, the Court said: `It is not only within the power of a court of equity, but the duty rests upon it, to enjoin the collection of an illegal tax in those cases where no adequate legal remedy is provided for the aggrieved taxpayer. Ware Shoals Manufacturing Co. v. Jones, 78 S.C. 211, 58 S.E., 811.'"
In the present case it is clear that upon the law as stated in the Home Building Loan case that the lien for taxes for the year 1933 and years prior thereto has expired. The demurrer upon jurisdictional grounds must, therefore, be overruled.
The next grounds upon which defendant demurs is that the complaint does not state facts sufficient to form a basis for relief prayed for. The complaint specifically states the sale of plaintiff's property for taxes for which the lien had expired, and under the case of Bomar v. City of Spartanburg, supra, cited and reaffirmed in the Home Building Loan case, supra, a Court of equity must grant relief. Defendant again objects that tender was not made by the plaintiff before suit. This point was specifically decided by the Supreme Court as follows:
"It is further contended it was a condition precedent to the prosecution of this action that the plaintiff tender the amount of the taxes which are not in dispute. I assume this has reference to taxes for the years 1934 and 1935.
"The weight of authority does support the principle that, where one seeks to enjoin the collection of an excessive tax, he must tender what is admitted to be due before injunction will be allowed and that, before a court will remove cloud on title arising from alleged liens for taxes, there must be paid or tendered the tax justly due and owing. For the reasons hereinafter stated, I do not think this principle applicable to the relief which should be granted in this action. Assuming it was, however, I am inclined to think that it would not necessitate dismissal of the action, but the court would grant the relief which it deemed proper, conditioned upon payment of such taxes within a stipulated period. Singer Sewing Machine Company v. Cooper (D.C.), 263 F., 994.
"However, it is not proposed to enjoin or stay the collection of the taxes on this property for the years 1934 and 1935. If such were the case the foregoing principles perhaps would apply. The only relief that can or should be granted is to enjoin the officials of the city from issuing deed pursuant to a sale clearly illegal. The city is not restricted in any manner in the collection of the taxes justly owing and upon which the duration of the lien has not expired. In 61 C.J., p. 1091, we find: `When suit is brought to enjoin that part of certain taxes only that are claimed to be invalid, complainants are not required to pay the taxes not sought to be enjoined as a condition precedent to their right to sue.'
"Also see Bell v. Meeker, 39 Ind. App. 224, 78 N.E. 641."
51 C.J. 254: "It has been held that the equity plaintiff may be compelled to do as a condition of relief must be one which defendant could enforce against plaintiff by an independent suit, and which arises out of the transaction forming the subject-matter of the suit."
The defendants object that the city council of City of Spartanburg; T.W. Woodworth, Mayor; J.A. Wood, A. N. Willis, L.T. Cothran and R. Fred Maddox, Commissioners; and I.T. Williams, city clerk and treasurer, are neither necessary or proper parties.
As the Supreme Court has definitely decided in the Home Building Loan case, supra, that this type of case is not a suit against an arm of the State but a suit to enjoin or obviate the illegal act of the city officers, and as it was pointed out that this same procedure was had in the case of Charleston Heights Land Co. v. City Council of Charleston, 138 S.E., 187, 136 S.E., 393, and Ware Shoals Mfg. Co. v. Jones, supra, it seems to me that it is both proper and right to join as parties the city council and their agents who made the assessments and who are now attempting to collect the taxes. In this connection, I call attention to the following authorities:
44 C.J., Municipal Corporation, § 4520: "Parties defendant: The municipality is a proper party defendant, and the officers of the municipality alleged to have made the invalid assessment and to be attempting to enforce collection of the tax are properly joined as parties defendant, but it has been held that the municipality itself need not be made a party by name where the mayor and members of the council are made defendants and appear and answer in their official capacity as well as individuals, unless the property rights of the municipality would be affected by the decree."
32 C.J., Injunctions, § 478: "Where a suit is brought to restrain action in behalf of a municipality, the officers whose duty it is to perform the acts sought to be enjoined are proper, and usually necessary parties. * * * (f) In an equitable proceeding, where an attack is made upon the legality of certain taxes, which it is alleged the commissioners of a quasi-public corporation are attempting to levy upon the property of complainants through the county clerk, the commissioners are necessary parties, essential to the rendition of a final decree. Knopf v. Chicago Real Est. Bd., 173 Ill., 196, 50 N.E., 658."
"In a suit in equity to enjoin collection of municipal taxes on realty, based on values fixed by officers of the municipality acting ultra vires, where the individual officers alleged to have made the assessment, and to be attempting to enforce collection thereof, were made parties defendant, the municipal corporation, being interested in the collection of the city's revenue, was also a proper party; and the suit being in equity, where all persons in interest ought to be parties. Gelders v. City of Fitzgerald, 135 Ga. 400, 69 S.E., 569." S.C. and S.E. Dig., Mun. Cor., 579.
Defendant's second ground of demurrer must, therefore, be overruled.
The last ground upon which defendant demurs is that there has been a misjoinder of parties defendant.
The Supreme Court in the case of Cleveland v. City of Spartanburg, 185 S.C. 373, 194 S.E., 128, a paving assessment case, affirmed the order of Special Referee W.C. Cothran, in which he sustained such a demurrer: "The case of Murray Drug Company v. Harris, 77 S.C. 410, 57 S.E., 1109, holds that it is discretionary with the trial court as to the naming of parties defendant. The elimination of the named defendants leaves as defendants in the cause the City of Spartanburg, and J.H. Rothrock, city tax collector. Since the city, through its council, authorized Rothrock, its tax collector, to sell the property of the plaintiff in order that the paving assessment be collected, and, since the suit is for the sole purpose of preventing this sale from being completed, I can see no necessity for additional parties. If the city and its tax collector be enjoined from selling the property for the purpose of collecting this amount from the plaintiff, it is difficult to imagine how the other defendants might do so" (page 130).
It also seems that this exact question was before the Supreme Court in the case of Lowry v. Jackson, 27 S.C. 318, 3 S.E., 473, in which the Court said (page 475): "It is clear that the first ground of demurrer — for defect of parties defendant — cannot be sustained, even if it be conceded that the two Redfearns were not proper parties. Defect of parties, as the word imports, means too few, and not too many. Hence, as is said in Pom. Rem., § 206: `A demurrer alleging this particular objection can only be interposed, therefore, in case of a nonjoinder of necessary parties plaintiffs or defendants, and never in case of a misjoinder. The word "defect" is taken in its literal sense of "deficiency," and not in a broader sense as meaning any error in the selection of parties. Upon this point the courts are nearly unanimous.'"
Neither the case of Murray Drug Co. v. Harris, supra, or the Cleveland case overruled Lowry v. Jackson, supra. However, in the Cleveland case relief was asked and granted against the City of Spartanburg, which was acting in levying the paving assessment in its corporate capacity rather than in its sovereign capacity. In the present case no relief is asked, nor on authority of the Home Building Loan case could any relief be granted against the City of Spartanburg, as the city is acting in its sovereign capacity in regard to taxes. As this is a suit to enjoin the city officials from doing an unlawful act, it seems to this Court that the city council and its agents are proper parties. As the city itself cannot be enjoined in this kind of a proceeding, then the city council and its officers and agents should be enjoined, as was done in the cases of Charleston Heights Land Co. v. City Council of Charleston, 138 S.C. 187, 136 S.E., 393, and Vesta Mills v. City Council, 60 S.C. 1, 38 S.E., 226. I therefore do not deem it necessary to decide whether or not a demurrer for misjoinder of parties is the proper pleading, as it appears to my satisfaction that the city council and its officers are proper parties. The demurrer of the defendants is therefore overruled on this ground
I find that the issues and the facts as pledged in the verified complaint and admitted by the demurrer and in open Court by defendants' counsel whose answer is in default in this case are substantially the same as those raised in the case of Home Building Loan Association v. City of Spartanburg, supra; that the tax sale is null and void in that there was no legal levy and seizure of the property; that the lien for taxes for 1933 and years prior thereto had expired; and that the penalties added to the taxes for 1934 and 1935 were charged without due legal authority. If defendants have any meritorious defense, they can proceed under Section 495 of the Code.
It is ordered that the alleged sale of June 7, 1937, be and the same is hereby adjudged invalid and that the defendants, City Council of City of Sparanburg; T.W. Woodworth, Mayor; J.A. Wood, A.N. Willis, L.T. Cothran and R. Fred Maddox, Commissioners; I: T. Williams, city clerk and treasurer; and J.H. Rothrock, city tax collector, be and they are hereby permanently enjoined and restrained from issuing title to the purchaser, City of Spartanburg, or any other person under and by virtue of said sale, and from performing any further acts towards consummation of said sale.
This case was heard by me while at Spartanburg, presiding in the Seventh Circuit, and taken under advisement.
Messrs. Johnson Johnson, for appellant, cite: As to injunctive relief preventing collection of taxes: Secs. 2845, 2846, 2847, Code 1932; 49 S.C. 188; 27 S.E., 1; 181 S.C. 453; 187 S.E., 921; 197 S.E., 317; 78 S.C. 211; 58 S.E., 811: Demurrer: 59 C.J., 434; 181 S.C. 501; 188 S.E., 243; 178 S.C. 111; 182 S.E., 319; 180 S.C. 40; 185 S.E., 51; 105 A.L.R., 1115; 131 S.C. 48; 126 S.E., 435; 175 S.C. 436; 179 S.E., 494; 160 S.C. 441; 158 S.E., 824; 169 S.C. 36; 168 S.E., 195; 171 S.C. 438; 172 S.E., 620; 173 S.C. 302; 175 S.E., 637; 178 S.C. 226; 182 S.E., 154. Where order granting injunction fails to call for written understanding: Sec. 570, Code 1932; 89 S.C. 189; 71 S.E., 817; 73 S.C. 550; 53 S.E., 996; 83 S.C. 78; 64 S.E., 513; 21 L.R.A. (N.S.), 1005; 51 S.C. 379; 29 S.E., 227; 37 S.C. 223; 15 S.E., 947. Tax sales: 185 S.C. 313; 194 S.E., 143.
Messrs. DePass DePass, for respondent, cite: Taxes: 185 S.C. 353; 194 S.E., 143; 185 S.C. 395; 194 S.E., 137; 183 S.C. 313; 194 S.E., 139. Enjoining collection of taxes: 168 S.C. 112; 167 S.E., 22; 78 S.C. 211; 58 S.E., 811; 181 S.C. 453; 187 S.E., 921. Tax sales: 168 S.C. 69; 167 S.E., 2; 61 C.J., 1658; 78 A.L.R., 186; 180 S.C. 382; 185 S.E., 911; 263 F., 994; 78 N.E., 641. Pleadings: 100 S.C. 196; 84 S.E., 710; 3 Cyc., 308; 65 S.C. 133; 43 S.E., 386.
December 6, 1938. The opinion of the Court was delivered by
Plaintiff instituted this action in the Court of Common Pleas for Spartanburg County January 1, 1938, to set aside the sale of certain real estate by the tax collector of the City of Spartanburg, and to enjoin the city authorities from conveying title to the said property, and from taking any steps toward consummating the sale.
The complaint alleged that (omitting the formal allegations of the residence of the plaintiff, the corporate municipal capacity of the city, and the relation of the other defendants as officers of the city) plaintiff was at the time named therein, to wit, the sale of the property mentioned, the owner of two certain lots (described) in the City of Spartanburg; that the defendant J.H. Rothrock, the tax collector of the City of Spartanburg, advertised, under an alleged tax execution, and on July 7, 1937, sold the above-described property at public outcry, for alleged unpaid taxes for the years 1930, 31, 32, 33, 34 and 35, at which sale the property was bid in by the City of Spartanburg; that none of the said taxes constitute a debt due and owing to the defendants by the plaintiff; that plaintiff stands ready and willing to pay the taxes for the years 1934 and 1935; that the taxes for the years 1933, 1932 and 1931 were levied against the former owners of the property and, as shown by the annual supply ordinances of the City of Spartanburg, became due on or before June 1, 1933; that no levy by the tax collector, nor any other person in behalf of the city, was ever made on the said property, nor was it ever taken possession of, prior to the sale; that the lien for taxes for the year 1933 and the years prior thereto which the city had by law, had expired before the said sale, and the city had no lien thereon for the said years; that under the statutes and the supply ordinances for the years 1934 and 1935, no penalty was named for the nonpayment of taxes for those years, but ten (10%) per cent. was added to the taxes without authority; that all of said taxes are charged against former owners, other than this plaintiff, for which charges the defendants have an adequate remedy, which through laches they have neglected to use; that the said sale is null and void; that defendants intend to convey title to this property to the City of Spartanburg, or its assigns, unless restrained.
Plaintiff prays: That the sale be declared to be illegal, null and void; that the lien for all taxes alleged to be charged against this property for the year 1933 and prior thereto be declared to have expired; that the penalty added to the taxes for the years 1934 and 1935 be held to have been charged without authority of law; that the defendants and their agents and servants and their successors be permanently enjoined and restrained from conveying title to the City of Spartanburg, or any other person, under and by virtue of said sale, and from performing any other acts toward the consummation of said sale.
To the complaint, the defendants demurred on the following grounds:
1. That it appears on the face of the complaint that this is an action to restrain the collection of taxes and penalties, and under Sections 2845 to 2847, inclusive, of the Code, the Court has no jurisdiction to grant any writ, order or process of any kind staying or preventing such collection.
2. That the complaint fails to state any cause of action as a basis for the relief prayed for, in that: (a) It does not appear that plaintiff has no adequate remedy at law by payment under protest and recovery under Sections 2845 to 2847, inclusive, of the Code. (b) It does not appear from the complaint that plaintiff has tendered payment of the taxes, penalties and costs constituting admitted liens against the property described in the complaint. (c) It does not appear that the city council (naming them) and the city clerk and treasurer are necessary or proper parties to this action.
3. (a) It does not appear that the city council (naming them) and the city clerk are proper parties to the relief prayed for in this action.
Judge Greene, presiding in the Seventh Circuit, heard the case and in due time filed his order dismissing the demurrer and granting the relief prayed for.
The defendants appealed upon exceptions which need not be reproduced. Appellants' counsel state in their brief that the exceptions make the following questions for the attention of the Court:
1. Was it error for the Circuit Judge to hold that the complaint stated a cause of action for equitable relief by injunction?
2. Was it error for the Circuit Judge to pass final judgment upon the ultimate facts of the case without any proof or evidence to sustain such ultimate facts being offered?
3. Was it error for the Circuit Judge to grant an injunction without requiring a written undertaking on the part of plaintiff as required by Section 570 of the Code?
4. Was it error for the Circuit Judge to grant final judgment upon defendants' demurrer without according defendants the right to answer as a matter of course?
5. Was it error for the Circuit Judge to grant plaintiff any relief in equity without requiring the payment of all taxes, penalties and costs constituting admitted liens against the property at the time of the sale complained of?
The order of Judge Greene disposes of most of the issues raised by the questions proposed by appellants. Indeed, practically all of them have been disposed of by the decree of Judge Ozner adopted by this Court as its judgment in the case of Home B. L. Association v. City of Spartanburg, 185 S.C. 353, 194 S.E., 143, in which case nearly every issue made by defendants in their demurrer and appeal, was made and determined adversely to the contentions of defendants in this case.
The order of Judge Greene is satisfactory to the Court, and will be reported, along with the addition herein contained, as the judgment of the Court.
The issue made by the defendants' first question is expressly decided against them by the case of Home B. L. Association v. City of Spartanburg, supra.
The issue propounded by the second question is, that it was error for the Circuit Judge to pass final judgment upon the ultimate facts without there being any evidence to prove such facts.
Thereabout Judge Greene said: "I find that the issues and the facts as plead in the verified complaint and admitted by the demurrer and in open court by the defendants' counsel whose answer is in default, in this case are substantially the same as those raised in the case of Home Building and Loan Association v. City of Spartanburg; that the tax sale was null and void in that there was no legal levy and seizure of the property; that the lien for taxes for 1933 and years prior thereto had expired; and that the penalties added to the taxes for 1934 and 1935 were charged without due legal authority. If defendants have any meritorious defense, they can proceed under Section 495 of the Code."
The defendants were apprised by the complaint of the issues upon which plaintiff relied. If they desired to make issues of facts, they had the opportunity by answer; but they elected instead to stand upon a demurrer predicated alone upon issues of law. In addition, the order of Judge Greene expressly gave them the right to apply for leave to answer under the provisions of Section 495 of the Code of Civil Procedure, 1932. They have not seen fit to adopt this course. The defendants then were in default. In the case of Duncan v. Duncan, 93 S.C. 487, 76 S.E., 1099, this is said (page 1102): "Because a party in default cannot appeal directly to this court from the judgment against him. His remedy is by motion in the cause, to vacate the judgment, under section 195 [now section 495] of the Code. Gillian v. Gillian, 65 S.C. [129], 133, 43 S.E., 386, and cases cited. Even then, an appeal will not be entertained from the order refusing such motion, unless the grounds of the motion strike at the foundation of the cause of action, or the power of the court to pronounce the judgment, because the default admits the truth of every relevant fact well pleaded." (Italics added.)
In the Duncan case there was a demurrer.
We think the exception is without merit.
Question 3 charges that it was error for the Circuit Judge to grant an order of injunction without requiring a written undertaking on the part of the plaintiff, as required by Section 570 of the Code.
It is true that that section provides that: "* * * When no provision is made by statute as to security upon an injunction, the court or judge shall require a written undertaking on the part of the plaintiff, with or without sureties, to the effect that plaintiff will pay to the party enjoined such damages, not exceeding an amount to be specified, as he may sustain by reason of the injunction, if the court shall finally decide that the plaintiff was not entitled thereto."
It will be conceded that this requirement of the Code is mandatory and that is was error not to require the plaintiff in this action to give the undertaking; but it was harmless error. The defendant could collect damages under such written undertaking only if "the court shall finally decide that the plaintiff was not entitled thereto." (Italics added.)
The Court has decided that the plaintiff was entitled to the injunction because the tax sale was invalid for the reason stated in the circuit decree, and this Court affirms that finding of fact and conclusion of law. It would be doing a futile thing to reverse the order appealed from because the undertaking was not given; this Court would still uphold the finding that the sale was illegal, null and void, and the defendants would not have suffered any damages.
The appellants suggest error to the Circuit Judge, by their fourth question, that upon overruling the demurrer he gave final judgment, without giving them the right to answer as a matter of course.
Section 457 of the Code of Civil Procedure (Code 1932) provides that: "The only pleading on the part of the defendant is either a demurrer or an answer. * * *" (Italics added.)
In this case the defendants elected to stand on a demurrer which presented to the Court only questions of law. There was nothing in it to suggest to the Court that the defendant desired to answer over in order that they might set up defenses founded on facts. On the contrary, as already quoted from Judge Greene's order, he said: "I find that the issues and the facts as plead in the verified complaint and admitted by the demurrer and in open Court by defendants' counsel whose answer in in default in this case, are substantially, etc."
It was not obligatory on the Court to permit the defendants to answer over after the demurrer had been overruled, and this Court has held in Sprunt v. Gordon, 89 S.C. 426, 71 S.E., 1033, that it is usual to grant such leave, but that presupposes that motion for such leave has been made. We have no doubt that if such motion had been made to Judge Greene, predicated upon meritorious grounds, that he would have granted it.
The case of Duncan v. Duncan, supra, is full authority for, and in apt analogy with, the position which we take.
The fifth question propounded by defendants' brief in support of their exceptions suggests that it was error for the Circuit Judge to grant any relief to the plaintiff without requiring payment of all taxes, penalties and costs constituting admitted liens against the property at the time of the sale.
The Circuit Judge had held the lien of the city for the taxes for the year 1933 and the years prior thereto had expired and that the sale was invalid for those years. He had also held that the penalties added to the taxes for the years 1934 and 1935 were charged without due legal authority. He held that the sale was illegal, not only for that cause, but because there was no levy and the property was never taken into possession by anyone representing the city. The plaintiff alleged in his complaint that he "stands ready and willing to pay the principal tax, plus execution fee, plus 5 per cent collector's charge for the years 1934 and 1935, or whatever amount the Court decrees to be just and proper." The Court has not enjoined the city from collecting the taxes due it. It has declared that the lien for taxes for certain years had expired before the sale, and that certain charges for other years were illegal; that as the sale was made without having made a lawful levy on the land, and without having taken possession, the sale was invalid and the defendants were enjoined from consummating the sale by conveying title.
The plaintiff alleged in his complaint: "That none of the above taxes or amounts constituted a debt due or owing the defendants by this plaintiff."
This allegation must be held to be admitted by the demurrer.
In the case of Vallentine v. Robinson, decided by this Court in an opinion filed July 6, 1938, and reported in 188 S.C. 194, 198 S.E., 197, this is found:
"A tax execution must issue against the true owner of the property [Syllabus]. * * *
"It is a common assumption that a tax execution is issued against the property; such is not the case; it is issued against the defaulting taxpayer. The assessed taxes are a debt due to the State by the owner of the property. Section 2569, Civil Code, 1932, declares that: `All taxes, assessments and penalties legally assessed shall be considered and held as a debt payable to the State by a party against whom the same shall be charged.'"
The city has its right of action against the owners of the property when the taxes were assessed thereon. The Court could not in this case have ordered the present plaintiff to pay them as a condition precedent to bringing his action.
All exceptions are overruled and the order appealed from is affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BAKER and FISHBURNE concur.
MR. JUSTICE CARTER did not participate on account of illness.
ORDER ON PETITION FOR REHEARING
The action from which the appeal was taken was not one for the refund of taxes paid under protest, but was brought to restrain the defendants from making title to real property sold at an invalid tax sale. There can be no doubt that the lien for taxes for the year 1933, and years prior thereto, had expired when the sale was made; and there is no doubt that on that account the sale was invalid, and inasmuch as the sale included the taxes for the years 1934 and 1935, as to which the Circuit Judge held and this Court concurred in the finding that there had been no legal levy upon taking possession of the premises, the sale as to these years also was invalid.
It does not appear from the record that the Acts of 1937 (Act March 22, 1937, 40 St. at Large, p. 138), was called to the attention of the Circuit Judge, nor was it passed upon by him. It is now called to the attention of this Court.
It appears that that Act, by amendment to Section 2846 of the Code of Laws, 1932, provides that the provisions of that section relating to the payment of taxes under protest shall apply to the taxes due the cities and towns, as well as the State and county taxes. By those provisions, the person paying taxes under protest is empowered to bring action to recover such payment.
It is hereby held that the opinion filed December 6, 1938, in so far as it relates to the taxes for 1934 and 1935 paid by the respondent, is controlling only in this case; and is not to be understood to foreclose to the City of Spartanburg any rights it has under the Act of 1937 in the collection of taxes due it, since the passage of that Act.
Let this order be reported along with the opinion.
This renders it unnecessary for a rehearing of the case.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM, BAKER and FISHBURNE concur.
MR. JUSTICE CARTER did not participate because of illness.