Bank v. Colson, (No. 4990.)

• Decision Date: 03 July 1926
• Docket Number: (No. 4990.)
• Citation: 134 S.E. 85,162 Ga. 471
• Parties: BIBB NAT. BANK. v. COLSON et al.
• Court: Georgia Supreme Court

162 Ga. 471

134 S.E. 85

BIBB NAT. BANK.

v.COLSON et al.

(No. 4990.)

Supreme Court of Georgia.

July 3, 1926.

(Syllabus by the Court.)

Error from Superior Court, Glynn County; J. P. Highsmith, Judge.

Suit by the Bibb National Bank against J. T. Colson and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Edna A. Ferguson, A. H. Crovatt, and W. C. Little, all of Brunswick, for plaintiff in error.

J. T. Colson, of Brunswick, for defendants in error.

RUSSELL, C. J. [1] The petition in this case alleges that on June 7, 1921, W. R. Tucker sold a described tract of land, containing 300 acres, to R. R. Tucker, under a power of sale contained in a certain deed to secure a debt, from T. L. Cain to W. R. Tucker; said security deed being dated January 6, 1921. On November 1, 1921, R. S. Pyles, as sheriff of Glynn county, executed to J. T. Colson a deed to a described 50-acre tract off of said 300 acres; said deed having been made "after the levy and sale of said property by said R. S. Pyles, sheriff as aforesaid, under a tax execution in favor of the state of Georgia and the county of Glynn against the said T. L. Cain." On June 11, 1924, Edward P. Taylor, as trustee of the estate of R. R. Tucker, bankrupt, executed a deed to the petitioner, conveying 225 acres of the first above-described property, of which the 50-acre tract is a part. It is further alleged in the petition that at the time Pyles levied upon the 50-acre tract under said tax execution, said T. L. Cain was not the true owner, nor was he in possession of said property under any lawful claim or right, but R. R. Tucker was the true owner of said property and was in possession thereof under a good and sufficient deed from W. R. Tucker, "and the deed from said R. S. Pyles, as sheriff, to said J. T. Colson, is void and should be canceled"; that petitioner is the true owner of said property and is now in possession of same under warranty deed, "which is perfect title to said property." It is alleged that the deed from Pyles, sheriff, to Colson, is such as would operate to throw a cloud upon petitioner's title and might be injuriously used against petitioner. Petitioner cannot immediately or effectively maintain or protect its rights by any other course or proceeding, and petitioner suffers present injury by said Colson's claim of right. Petitioner has given notice of intention to file suit, but said notice has been ignored and not complied with. Petitioner is ready and willing to pay to the county of Glynn or to the holder of the tax deed hereinbefore described the lawful taxes that were due upon said property on the tax execution levied on the property aforesaid, and to fulfill its obligations as equity may demand. The petition prays that said deed from Pyles, sheriff, to Colson be canceled and set aside, for process, and such other and further relief, etc. The defendants demurred to the petition generally upon the ground that the same set forth no cause of action. The judge sustained the demurrer and dismissed the petition,...