In Burch v. Harrell, 57 Ga. App. 514 (196 S.E. 205), relied on by the applicant for a year's support, there was no express provision in the will that the widow was devised the property in lieu of year's support, nor did the will plainly and manifestly imply such intention on the part of the testator.Summary of this case from Rogers v. Woods
DECEMBER 1, 1942.
Equitable petition. Before Judge Graham. Dodge superior court. July 21, 1942.
O. J. Franklin, for plaintiff. Will Ed Smith, for defendant.
The plaintiff's petition, seeking cancellation of certain tax deeds issued under an execution against her for state, county, and school taxes, although showing that she had neither title to nor possession of the property involved at the time of the tax sale, having acquired title later by a judgment for year's support, nevertheless failed to show that she did not owe the taxes represented by the execution, and she did not offer to pay the same, and was therefore subject to the demurrer raising these questions.
No. 14343. DECEMBER 1, 1942.
Mrs. W. V. Harrell filed her petition to cancel a tax deed; for decree of title and right to possession of land; and for injunction against changing the status. The defendant interposed demurrers which were sustained, and the action was dismissed. The plaintiff excepted.
She alleged substantially as follows: The defendant was in possession of a described 174 1/4 acres of land comprising two tracts of 101 1/4 acres and 73 acres respectively, by virtue of a tax deed to him, dated December 1, 1936, showing a consideration of $483.64, to satisfy tax fi. fas. for the years 1931, 1932, 1934, and 1935 issued against Mrs. W. V. Harrell, the plaintiff. While the lands were sold as the property of petitioner, she was not then, or at any time before the date of the tax deed, the owner of or in possession of the land, and had no legal right to exercise control thereof, nor did she return any of the lands for taxation. The 101 1/4 acres was owned by Sarah E. Harrell and Susan Harrell as life-tenants, with remainder at their death to go to W. V. Harrell, as shown by an attached copy of a deed dated July 9, 1900. Sarah E. Harrell and Susan Harrell went into possession and remained in possession until the death of Susan about November, 1924, and the death of Sarah about November 3, 1935. Neither Sarah nor Susan ever married, but Susan was the mother of W. V. Harrell. About October, 1918, W. V. Harrell died, and there was no administration of his estate, but he left certain named children, none of whom conveyed or disposed of their interest in the land. Petitioner is now the owner of said 101 1/4 acres of land, and claims title and legal right of possession thereof, said claim being based upon a judgment of the court of ordinary setting apart that land to her as a year's support from her husband's estate; and a copy of an alleged abstract was attached. The tax deed is void because of excessive levy, there having been a total of 174 1/4 acres, worth $1396, levied on to pay tax fi. fas. totaling $483.64. Said tract could have been divided and the other 73 acres would have been sufficient to pay all the tax fi. fas. Petitioner never had any legal interest in the 101 1/4 acres of land until her year's support judgment. The mesne profits of the 101 1/4 acres are $75 annually. By amendment the plaintiff alleged, that the defendant has been in possession for four years since the period of redemption expired, and that the rental value for that period is $300; that inasmuch as petitioner is not interested in the 73-acre tract of land, if she is required to tender any portion of the consideration of the tax deed she should only be required to account for her pro rata share, but she should not be required to tender any amount, because the rents and profits amount to more than plaintiff's pro rata share of the $483.64; and that, although claiming title to the 101 1/4 acres, plaintiff is still unable to make a bona fide tender of any amount of money, because of her poverty. She prays that defendant account for the rents and profits, and that the correct amount of his lien, if any he has, on the 101 1/4 acres be set up. By another amendment the plaintiff avers that she stands ready to do equity according to the decree of the court, and to pay such amount as may be found due. The defendant demurred on grounds as follows: (1) no cause of action is set out; (2) plaintiff has not tendered the amount of taxes paid; (3) the allegations of the petition do not authorize the relief prayed; and (4) it is not alleged that the property sued for was returned for taxes by any one, or that the person returning the land for taxes as the property of the plaintiff had no authority to do so.
1. In the petition seeking cancellation of a tax deed and other equitable relief, the plaintiff alleges that she did not own the land sold to satisfy the taxes at the time of the sale, but that the ownership was in other named persons at that time, and that she subsequently became the owner of a portion of the land by virtue of a year's support judgment. But she also alleges that "defendant is in possession of the lands . . by virtue of a tax deed . . to satisfy and pay tax fi. fas. issued against Mrs. W. V. Harrell [the plaintiff in this action] for state, county and school taxes for the years 1931, 1932, 1934, and 1935." Nowhere in the petition does the plaintiff allege that she does not owe the taxes, or that she did not own other property which might have been the basis of the tax executions issued against her. When she merely alleges that the particular lands sold to satisfy the tax fi. fas. issued against her were not owned by her at the time of the tax accrual and sale, but does not negative her obligation and indebtedness for taxes upon other property, the allegations of the petition, which on demurrer must be taken as true and construed most strongly against the pleader, show that she owed the tax. Bibb County v. Elkan, 184 Ga. 520, 524 ( 192 S.E. 7); Long Realty Co. v. First National Bank of Valdosta, 177 Ga. 440 ( 170 S.E. 485).
Taxes constitute a general lien upon all the property of the tax-payer, and attach at the time fixed by law for valuation. Code, § 92-5708; Gledney v. Deavors, 8 Ga. 479; Stephens v. First National Bank of Newnan, 166 Ga. 380 ( 143 S.E. 386). The Code, § 37-104, declares: "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." Generally equity will not cancel a conveyance under which anything has been received, until repayment is made. Ray v. Atlanta Trust Banking Co., 147 Ga. 265 (5) ( 93 S.E. 418); Interstate Bond Co. v. Cullars, 180 Ga. 283 (3) ( 5 S.E.2d 756); Elder v. Home Building Loan Association, 185 Ga. 258 ( 194 S.E. 745). An exception to the rule requiring tender is where the petition alleges that the defendant has been in possession, receiving the rents and profits of the premises conveyed, and prays for an accounting therefor by the defendant, and that the correct amount due him be declared and set up. Wynne v. Fisher, 156 Ga. 656 (2) ( 119 S.E. 605); Zugar v. Scarbrough, 186 Ga. 310, 320 ( 197 S.E. 854). But in the Zugar case the court said: "It appears from the allegations that the damage from the trespasses exceeds by far the amount of the taxes for which the plaintiffs are accountable in equity. . . Since it thus appears from the petition that each of the defendants is liable to the plaintiffs in a sum greater than the amount of the taxes for which the property was sold, and that the plaintiffs are virtually asking for an accounting from all of them and are willing to do equity in the premises, the allegations with reference to excessive levy and the prayer for cancellation were not deficient for the failure to allege a previous tender of the amount of the taxes." In the instant case the plaintiff alleges that the tax fi. fas. amounted to $483.64, but she alleges rents and profits of only $300 for which she claims that the defendant is accountable. Accordingly, the plaintiff by her petition does not either allege that she has tendered the amount of the taxes as required by the general rule, or come within the exception relieving her from making such tender, because under her own allegations she does not show that the defendant is accountable to her for the amount of the taxes. Upon these principles it was not error to sustain the demurrer and dismiss the action.
This is not to hold that the property set apart to Mrs. Harrell as a year's support from the estate of her husband, who held the estate in remainder, is subject to any of the taxes as liens on the land either in rem or against his estate (Code, §§ 113-1002, 113-1508), but is a mere application of the rule discussed above, which required of her, irrespective of the year's support, that in seeking equitable relief in such circumstances she tender the amount of taxes owing by her.
Judgment affirmed. All Justices concur.