Opinion
23120.
SUBMITTED SEPTEMBER 15, 1965.
DECIDED OCTOBER 19, 1965.
Injunction. Fulton Superior Court. Before Judge Moore.
Wyman C. Lowe, for plaintiffs in error.
Henry L. Bowden, Charles M. Lokey, contra.
1. When the taxpayer redeemed the property sold under Federal tax liens, the property again became subject to tax liens of the city, and it was not error to dissolve an order restraining a sale of the property under the city tax liens.
2. There was no abuse of discretion in denying a motion to reconsider the order dissolving the temporary restraining order.
SUBMITTED SEPTEMBER 15, 1965 — DECIDED OCTOBER 19, 1965.
Wyman C. Lowe and Walter Cooper brought an action to enjoin the sale of certain real estate levied upon by the City of Atlanta as the property of Viola Brown for unpaid taxes due for the years 1961, 1962, and 1963, the sale to take place on the first Tuesday in July, 1964. A temporary restraining order was issued on July 7, 1964.
The petition as amended alleged that: The petitioners purchased the property under a tax levy and sale made by the United States Internal Revenue Service on July 1, 1963, and were issued a "certificate of sale." Within a month after the tax sale Viola Brown redeemed the property from the petitioners, and later in the same month, for a consideration, conveyed all her interest in the described land by quitclaim deed to them. It was contended that the Federal tax liens under which the property was sold on July 1, 1963, were superior to the city tax liens.
On April 14, 1965, after argument of counsel, the trial judge dissolved the temporary restraining order. On April 15, 1965, the petitioners filed a motion to reconsider and offered an amendment to their petition. Filing of the amendment was allowed subject to objections and demurrer. On May 10, 1965, the judge denied the motion to reconsider.
The petitioners except to the order dissolving the temporary restraining order, and to the denial of their motion to reconsider.
1. In the petition as originally brought it was contended that the Federal tax liens under which the property was sold on July 1, 1963, were superior to the liens for taxes claimed by the City of Atlanta. The city does not contest this position, and the question of lien priorities is not the controlling issue in the case.
The Federal law under which the property was sold provides for the sale of seized real property and for the issuance of a "certificate of sale" to the purchaser at the tax sale. 26 U.S.C.A. §§ 6335, 6338. Should the taxpayer fail to redeem the real property sold within one year of the sale, the purchaser would be entitled to a deed to the real property purchased. 26 U.S.C.A. § 6338 (b). Under the allegations of the petition, the petitioners never acquired the deed contemplated by the Federal statute. They acquired only a certificate of sale, and prior to the time the deed could have been secured, the property was redeemed by the taxpayer. A certificate of sale in these circumstances does not pass title to the property and is not evidence that title has passed. Flemister v. Flemister, 83 Ga. 79 (3) ( 9 S.E. 724); Beckham v. Lindsey, 22 Ga. App. 174 ( 95 S.E. 745).
Code § 92-8302 provides: "When property has been redeemed, the effect thereof shall be to put the title conveyed by the tax sale back into the defendant in fi. fa., subject to all liens existing at the time of the tax sale, ..." The petitioners contend that this section applies only to tax sales by the State or some subdivision thereof, and not to sales by the United States Internal Revenue Service. While the provisions of the Federal statutes control as to the manner in which property may be redeemed after sale for Federal taxes, once the redemption has become effective, the effect of the redemption as to other liens on the property would be determined by the statutes of this State.
After the redemption by the taxpayer, Viola Brown, the property again became subject to the tax liens of the city, and the quitclaim deed from the taxpayer conveyed the property subject to those liens. It was not error for the trial judge to dissolve the temporary restraining order.
2. In the amendment filed on the same date the motion to reconsider was made, the petitioners struck from their petition the allegation that Viola Brown redeemed the property and subsequently quitclaimed it to them, and substituted in lieu thereof the following: "Within a week after petitioners so bought said parcel of land [describing it], Viola Brown attempted to redeem said property from plaintiffs and before she did so conveyed for consideration all her interest in said largest parcel by quitclaim deed to plaintiffs."
This somewhat ambiguous amendment appears to be an attempt to substitute allegations contradictory of those in the petition at the time the order was entered. A party may withdraw assertions made in his verified pleadings, but he can not avoid the effect of the admissions made therein, and the opposite party may introduce such pleadings in evidence. Lydia Pinkham Medicine Co. v. Gibbs, 108 Ga. 138 ( 33 S.E. 945); Cooley v. Abbey, 111 Ga. 439, 443 ( 36 S.E. 786); Alabama Midland R. Co. v. Guilford, 119 Ga. 523 (1) ( 46 S.E. 655). Under the same principle a trial judge acting without a jury may consider former pleadings.
There is nothing in the record in the present case to show that the judge abused his discretion in denying the motion to reconsider his order dissolving the temporary restraining order.
Judgment affirmed. All the Justices concur, except Mobley, J., not participating for providential cause.