Collins v. Boring

• Decision Date: 08 July 1895
• Citation: 23 S.E. 401,96 Ga. 360
• Parties: COLLINS v. BORING.
• Court: Georgia Supreme Court

23 S.E. 401

96 Ga. 360

COLLINS v. BORING.

Supreme Court of Georgia

July 8, 1895

Syllabus by the Court.

1. Trust estates, like others, are liable for taxes legally assessed against them; and where the trustee, herself a female, owning no property in her own right, resides upon the trust property for a great many years, and under such circumstances an execution for taxes due thereon issues against her eo nomine, with the addition of the word "Trustee," it will be presumed, after long acquiescence by her, that the taxes thus sought to be collected were legally assessed against the trust property and if, after a sale under such an execution, the trustee yield possession at the demand of a purchaser thereat, and he enters, a verdict finding in favor of the contention that the execution was a legal charge against the trust estate, and that the trust property could be legally sold thereunder, is so far supported by the evidence that this court will not disturb the discretion of the trial judge in upholding the finding of the jury.

2. Where the levy entered upon a tax execution describes the property levied upon with such accuracy as to clearly distinguish the same from other property of like character and with such particularity as to render the same capable of exact identification by extrinsic evidence, the levy is, in law, sufficiently certain as to the matter of description.

3. In the absence of a statutory affidavit of forgery, the law will presume, in favor of a duly-registered deed, that it was executed as offered in evidence; and, if alterations appear to have been made therein, it will be presumed that such alterations were made at or before the time of its execution.

4. Where, in the entry of a levy upon an execution, it appears that alterations and changes have been made, it will, if nothing appears to the contrary, be presumed, in favor of the integrity of the official return, that such alterations and changes were made by the officer, or by his direction, at the time the original entry was made, and before any further action thereunder.

5. Where land belonging to a trust estate is levied upon under an execution against the same for taxes, which land is afterwards sold at sheriff's sale, and bought by a stranger to the trust, who thereafter sold to yet another which latter person purchased in good faith, without notice of any irregularities in the sheriff's sale, and entered into possession under a deed executed by the purchaser at the sheriff's sale, such deed is good as color of title, whether in all respects perfect or not, and serves as a good basis for prescription, under which a statutory possession, for the period prescribed by law, will perfect the title.

6. This being the third consecutive finding in favor of the defendant, and the evidence being sufficient to support the verdict, and the trial judge being satisfied therewith, his judgment overruling the plaintiff's motion for a new trial will not be disturbed.

Error from superior court, Fulton county; J. H. Lumpkin, Judge.

Action by James D. Collins against Mrs. I. P. Boring. Judgment for defendant, and plaintiff brings error. Affirmed.

Candler & Thompson, for plaintiff in error, Hulsey & Bateman and Geo.

Westmoreland, for defendant in error.

ATKINSON J.

1. Ordinarily executions against a trust estate for taxes should be issued against a trustee in his representative capacity and not in his capacity as an individual; and usually the mere addition "trustee" is description personae only, and does not give to the person so described his representative character. But the property of trust estates, like all other property, is liable for taxes legally imposed upon it, and where the trustee, owning in her own right no separate property, remained in possession of the trust estate, and while she was thus in possession an execution issued against her, describing her eo nomine, but with the addition "trustee," she having no property of her own liable for taxes, the presumption would be, after long lapse of time, that she made...