holding that where the taxes were in part not chargeable against the realty in question the record owner should pay to the court "the taxes actually due on this particular land, with interest and cost of sale, in accordance with the tender alleged in the petition"Summary of this case from Shipp v. Sheffield
DECEMBER 2, 1939.
Cancellation. Before Judge Smith. Tift superior court. April 15, 1939.
E. C. Parrish, C. A. Christian, and Robert R. Forrester, for plaintiff in error.
Franklin Eberhardt and S. B. McCall, contra.
1. An entry of levy by a sheriff on a tax execution, and a sheriff's deed made in pursuance of a sale based on such entry, can not be so reformed as to describe the property by a description materially different from the description appearing in the original entry of levy. 61 C. J. 1363, § 1937; 23 R. C. L. 315, § 8; Batelle v. Knight, 23 S. Dak. 161 ( 120 N.W. 1102, 20 Ann. Cas. 456; Black on Tax Titles, § 409; Altes v. Hinckler, 36 Ill. 265 (85 Am. D. 406); Keepfer v. Force, 86 Ind. 81; Bowers v. Andrews, 52 Miss. 596. See Brinson v. Lassiter, 81 Ga. 40 (2 a) (6 S.E. 468). The court did not err in sustaining the general demurrer to the defendants' answer in the nature of a cross-bill.
2. The evidence set forth in ground 4 of the motion for a new trial tended to support the allegations of the petition, to which no demurrer was filed, and therefore was not subject to objection, on the ground that the tender as pleaded was insufficient. Kelly v. Strouse, 116 Ga. 872 (2) ( 43 S.E. 280).
3. The uncontradicted evidence substantially proving the case as laid, the court did not err in directing the verdict for the plaintiff.
4. It is not clear from the record that the decree provided that before an entry of cancellation the complainant pay the taxes on the particular land involved. Direction is given that if said decree does not already so provide, it be made condition of cancellation that complainant pay to the court the taxes actually due on this particular land, with interest and cost of sale, in accordance with the tender alleged in the petition. Davis v. Metropolitan Life Ins. Co., 48 Ga. App. 179 ( 172 S.E. 467). If required, let an issue as to the amount be submitted to a jury.
Judgment affirmed, with direction. All the Justices concur.
No. 12914. DECEMBER 2, 1939.
Thornhill Wagon Company filed a suit against Cook County and the commissioners of roads and revenues, to cancel a tax deed, alleging substantially the following: On December 15, 1932, A. D. Shaw executed a security deed conveying a described 120-acre tract of land to petitioner. The deed was duly recorded. Shaw defaulted, and the land was advertised under a power of attorney in the security deed and sold to petitioner. State and county tax fi. fas. against Shaw for the years 1930 to 1934, amounting to $1,709.28, were levied, and the following land was sold to defendants: "40 acres of land in the form of a square in lot No. 374 in the 9th land district of Cook County, Georgia, bounded as follows: north by original land line of said lot, east and south by other lands of A. D. Shaw, and west by lands of E. J. Fulwood." On payment of the purchase-price a sheriff's deed to defendant was executed. The 40 acres were sold as part of the 120 acres. The description of the 40 acres is an impossible description, as it is alleged to be a square and bounded on the north by the original land line; and as the north part of the land is in a V shape and contains only 22 acres, a 40-acre square could not be carved out of the description. The tax deed constitutes a cloud on petitioner's title and should be canceled as void for lack of description. It is inequitable for petitioner to pay all the taxes of Shaw, for the reason that he had other lands sufficient to pay the taxes, against which lands there are no liens. Petitioner is willing to pay the pro rata part of the taxes that are legally due against the lands, but defendants refuse to accept the money. Petitioner now stands ready to pay what taxes are legally due against the property, and offers to pay them to defendants or into the registry of the court.
The defendants filed an answer by which they sought to reform the original levy made by the sheriff on the tax fi. fas., and the advertisement thereof for sale; and sought to reform the tax deed executed by the sheriff, so as to make it speak the truth and specify the land actually levied on, sold at the tax sale, and bought by the county. The answer sought also an appointment of a receiver to take charge of the land which it is alleged it was the intention of all of the parties to describe in the levy, advertisement, and tax deed. A general demurrer to the answer as amended was sustained, and the court denied the application for receiver. The defendants excepted, assigning error on the sustaining of the demurrer to their answer and cross-action, but not on the refusal of the application for receiver. The writ of error was dismissed as premature, with direction granting leave to the plaintiffs in error to treat the official copy of their bill of exceptions as exceptions pendente lite. 186 Ga. 835. At the next trial it was agreed by counsel that the plaintiff and the defendants claimed under a common grantor. The plaintiff introduced documentary and parol evidence tending to support the allegations in the petition, which was not demurred to. The court directed a verdict in favor of the plaintiff. The defendants excepted to the refusal of a new trial. In the bill of exceptions error was assigned also on the ruling excepted to pendente lite.