Ansley v. Wilson
| Decision Date | 31 July 1873 |
| Parties | JOSEPH A. ANSLEY et al., plaintiffs in error. v. WILLIAM A. WILSON, trustee, defendant in error. |
| Court | Georgia Supreme Court |
Municipal corporations. Tax. Levy. Description. Advertisement. Before Judge Clark. Sumter County. At Chambers. May 10th, 1873.
William A. Wilson, as trustee for his wife and seven minor children, filed his bill against Joseph A. Ansley, N. A. Smith and J. C. Hogue, marshal of the city of Americus, making, in brief, the following case:
Complainant is the owner of twenty acres of land in the city of Americus, whereon there are two dwelling houses and other valuable improvements. Said property is worth at least $5,000 00, and constitutes almost the entire estate of his cestui que trusts. On February 26th, 1873, all of said property was levied on under a tax execution for the sum of $30 00, in favor of the city of Americus, against complainant, as agent for his wife, and the following entry made on said fi. fa:
"I have this day levied on one house and lot of the defendant, situated in the eastern portion of the city of Americus, to satisfy the within fi. fa. February 2 6th, 1873.
(Signed) "J. C. Hogue."
This levy was advertised for the first time in a newspaper known as the Sumter Republican, on March 4th, 1873. The property was sold on the first of April, 1873, not having been advertised thirty days, at public outcry, to the defendants, Ansley and Smith, for $96 00. Complainant has tendered to the defendant, Hogue, the amount due on said execution, and to the defendants, Ansley and Smith, the amount of their bid, with ten per cent, added, but they decline to receive the same.
Complainant here makes the same tender; waives discovery *and prays as follows: That the writ of injunction may issue, injoining said Hogue, city marshal, as aforesaid, from executing any deed or conveyance to said property to the defendants Ansley and Smith, and from attempting to place said defendants in possession of the same, and from interfering with complainant's use and enjoyment thereof; that said pretended sale be set aside and complainant be allowed to satisfy said tax execution by the payment of the amount due thereon; that the writ of subpoena may issue.
The answers of the defendants and the affidavits read on the hearing of the motion for injunction did not affect the allegations of the bill in reference to the points decided, except so far as they showed that complainant had actual notice from the marshal of said levy and intended sale.
The Chancellor ordered the injunction to issue in the penal sum of $4,000 00, upon the complainant's depositing in the clerk's office the amount due for city taxes, with costs of levy and sale, within ten days from the date of such judgment. To which decision the defendants excepted.
C. T. Goode; B. H. Hill & Son, for plaintiffs in error.
1st. The fact of the absence of two days' advertisement did not affect the sale, as the city laws were substantially complied with: Code, sec. 4; 25 Ga. R., 103. Marshal's sales are governed by the same laws that govern other judicial sales: Code, sec. 2586. The old distinction was based upon the rules governing fi. fas. issued by Courts of limited jurisdiction: 11 Ga. R, 428. This property was bound for taxes: 8 Ga R., 480; 4 Abbott's Nat. Dig., 259. Under section 893 of the Code, the rights of the purchaser are clear. He had nothing to do with the parceling of the property levied on: 40 Ga. R., 39.
2d. The case in 42 Georgia Reports, 629, does not affect this litigation.
3d. The right of redemption did not exist: 40 Ga. R., 50; sec. 31 of Act of incorporation of the city of Americus; Ordinances, p. 11, 33; 40 Ga. R, 39; Code, sec. 2577.
*4th. Injunction will not lie to restrain trespasser: 11 Ga. R., 294; 8 Ibid., 118; 5 Ibid., 576.
Hawkins, Guerry & Hollis, for defendant.
1st. Right of redemption exists: Code, sec. 892 to sec. 895. 2d. Marshal has no authority to put purchaser in possession: 40 Ga R., 49.
3d. The sale was in violation of law and of the city charter: 29 Ga. R., 56; 11 Ibid., 423; 3 U. S. Dig., p. 376, sees. 426, 427; 4 Peters, 349.
4th. The levy was grossly excessive, and the sale therefore void: 25 Ga. R., 103; 3 U. S. Dig., p. 377, sec. 464.
5th. The description in the levy is too uncertain: 42 Ga. R., 629.
6th. Injunction is the proper remedy: Code, sec. 3153; 40 Ga.R., 293; 11 Ibid., 246; 22 Ibid., 165; High on Inj., sec. 370.
1. Admitting (which we do not decide) that a good case is not made in this bill for an injunction against the trespass, because there may be a legal remedy, still, we think the complainant has a right, if the charges in his bill be true, to an injunction against the making of a deed by the marshal. A Court of equity has original, and formerly had exclusive, jurisdiction for such a purpose as that. It will prevent the parties doing what will complicate the title, and add a new or denser cloud to the blur which this sale casts upon the complainant's title. Besides, this bill shows that this is a trust estate, and a Court of chancery will not be backward to interfere to protect the beneficiaries, if they are about to be injured. True, if the trustee has acted so as to pass the title, the Court will follow the law, but it would be a very rare case where a Court of chancery would decline to protect a trust estate, and send the trustee to his legal redress. The rule that a complainant must come into equity with clean hands does not go so far as *to prohibit a Court of equity from giving its aid to a bad or a faithless man. The dirt upon his hands must be his bad conduct in the transaction corn-plained of. All complainants in equity are human beings, full of faults and sin, and I doubt if there is one case in ten in which the complainant is not somewhat to blame. If the complainant does equity himself, or offers to do it, (except in those cases where the rule in pari delicto, etc., comes in,) his hands are as clean as the Court can require. "He who asks equity must do equity, " is the maxim on which the expression as to "clean hands" is based. The right to seize and sell a man\'s property for his failure to perform a corporate duty, is the exercise of a high function that can only be justified by express law, and that law must be strictly construed: 20 Georgia, 639; 25 Ibid., 103; 31 Ibid., 700; 11 Ibid., 423. So far, indeed, does this rule go, that the text books lay it down that a power to a corporation to levy and collect a tax does not include a power to seize and sell, and that the corporation can only collect by suit: Dillon on Corporations, section 656, and the cases cited. This Court in 40 Georgia, held that a marshal could not put the purchaser in possession, unless expressly authorized.
We see nothing in the sections of the Code alluded to, to-wit: sections 890 to 901, Code of 1873, to justify us in saying that they apply to marshal's sales. Were they negative Acts, that is, Acts putting new restrictions on tax sales, we should incline to apply them to corporation tax sales where the charter was silent; but as they are claimed to extend and enlarge the effect of tax sales we think it would be a violation of all rules of construction to give these sections that meaning. The defendants then must stand on the charter. The title passes only when the charter is complied with. 1st. There must be an execution regularly issued under the charter. 2d. There must be a seizure of the property, and these are necessary to get authority to sell; and, still further, the other requirements of the charter must be complied with. Without these the sale is, in our judgment, void, according...
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