Bennett v. Southern Pine Co.

• Decision Date: 02 August 1905
• Citation: 51 S.E. 654,123 Ga. 618
• Parties: BENNETT et al. v. SOUTHERN PINE CO. et al.
• Court: Georgia Supreme Court

51 S.E. 654

123 Ga. 618

BENNETT et al. v. SOUTHERN PINE CO. et al.

Supreme Court of Georgia

August 2, 1905

Syllabus by the Court.

While under the law of this state, where property is sold for taxes, the officer making the sale executes a deed to the purchaser before the time for redemption has lapsed, yet the title acquired by such purchaser is not a perfect fee-simple title, but an inchoate or defeasible title, subject to the right of the owner to redeem within the time prescribed by the statute.

Although such a tax deed may be recorded, and on its face may contain no reference to the right of redemption, the public law of this state gives notice to all persons dealing with such title of the existence of that right, and the nature and character of the title conveyed by the deed.

Under the act of 1874 (Acts 1874, p. 106), an execution issued by the Comptroller General against a lot of wild land for unpaid taxes due upon it was somewhat in the nature of a proceeding in rem.

Where a lot of wild land was sold and the deed made to the purchaser and placed upon record, but during the time allowed for redemption the owner paid to the purchaser the proper amount and redeemed the land, and received the tax deed into his possession, but took no reconveyance, and after the lapse of the redemption period the purchaser conveyed the land to a third person for value, the latter would not acquire a title superior to that of the owner who had in fact redeemed although he bought without notice that the redemption had taken place.

Error from Superior Court, Ware County; T. A. Parker, Judge.

Action by the Southern Pine Company and J. L. Crawley against B. A and C. O. Bennett. Judgment for plaintiffs, and defendants bring error. Reversed.

Though a tax deed may be recorded and may contain no reference to the right of redemption, the law gives notice to all persons dealing with such title of the existence of that right and the nature of the title conveyed.

The Southern Pine Company of Georgia and J. L. Crawley filed their equitable petition against B. A. and C. O. Bennett seeking to obtain an injunction against the defendants to prevent them from cutting timber, for the purpose of making cross-ties, on certain land. The corporation claimed to be the owner, and Crawley to have a lease to the land from it for the purpose of cuting cross-ties, and also for making turpentine. The chain of title under which the plaintiffs claimed was as follows: A fi. fa. issued by the Comptroller General against the lot of land as wild land for state and county taxes due thereon for the year 1875, with costs, dated October 16, 1877, together with a levy of the sheriff, dated April 2, 1878, and a memorandum showing a sale to R. B. Reppard June 4, 1878; a deed from the sheriff to Reppard, dated June 5, 1878; a deed from Reppard to the Reppard Land, Lumber & Sawmill Company, dated July 18, 1883, including this and other lands, for a valuable consideration; a decree from the superior court of Chatham county in the case of Talmadge et al., trustees, against the Reppard Land, Lumber & Sawmill Company, ordering a sale of the land and other property of the defendant; a report of the commissioners, and a judgment confirming the sale; a deed from the commissioners to Talmadge; a deed from the defendant company to Talmadge for the purpose of confirming and approving the sale and perfecting the title; a deed from Talmadge to the plaintiff company, and leases from it to Crawley.

The defendants denied that the plaintiff company was the owner of the land, or that the plaintiffs were entitled to the injunction. They set up the following defense: The land was granted by the state to Hiram Sears in 1848, and was sold and conveyed by him to Dennis Paulk in 1872. Paulk regularly made his tax returns of the land; but through an error of the receiver of tax returns the lot was sold by the sheriff in 1878 as being in default, and was bid in by Reppard for $14. The deed made by the sheriff was duly executed, delivered, and recorded. Soon thereafter Paulk, having heard of the sale, proceeded within the time allowed by law to redeem the land, and for that purpose paid to Reppard the amount of his bid, together with interest and costs. Reppard thereupon delivered to him the sheriff's deed, but neglected to make any transfer thereof in writing. Paulk held the deed during his lifetime, claimed the lot as his property, returned it for taxes, and paid them. He died in 1899, leaving his wife and daughters as his sole heirs. The daughter died, leaving her husband surviving her. The land was conveyed by deeds from the widow Paulk as to one half interest, and by the husband of the deceased daughter as her executor or administrator as to the other half interest, under an order from the ordinary to the Downing Company. The defendants acquired the right to cut the timber under that company. Paulk claimed the land continuously, and the representatives of his estate likewise did so, and several years ago, for a period of three years or more, certain persons boxed the timber on the lot and worked on the land for turpentine purposes openly and notoriously, and without any interference, acting under the authority of Paulk.

On motion the court struck that portion of the answer setting up the defense just stated. This ruling is assigned as error. After the introduction of evidence the court directed a verdict in favor of the plaintiffs. The defendants moved for a new trial, which was refused, and they excepted.

J. L. Sweat, for plaintiffs in error.

John C. McDonald, for defendants in error.

LUMPKIN, J. (after stating the facts).

Certain allegations of the defendants' answer were stricken on motion. One of them was that the owner of the land in dispute had regularly returned and paid taxes on it, "but that through an error of the receiver of tax returns said lot was sold in the year 1878, as being in default." There is no law, and it is hardly conceivable that there could be one, which would authorize a sale of land for taxes, if they had been regularly returned and the taxes paid. Such a sale would be without authority, and would convey no title. This particular allegation, however, is not referred to in the briefs. The argument before this court rested on one question: If, while unoccupied, wild land was properly sold for taxes and the deed recorded, and after the lapse of the period for redemption the purchaser conveyed the land to another for value and without notice of the redemption having taken place, but in fact, within the time allowed by law for that purpose, the owner had redeemed it, but took no reconveyance from the purchaser, merely receiving possession of the tax deed from him, would the title of the vendee of the purchaser at the tax sale, or that of the original owner or his heirs (he having died), prevail? The presiding judge struck a portion of the answer setting up such redemption, on the ground that it did not appear that the subsequent vendee of the purchaser at the tax sale, or those holding under him, had any notice of the redemption. The plaintiffs claimed by regular conveyances under the purchaser at the tax sale. The defendants claimed by conveyances under the heirs of the original owner of the land.

Tax sales are creatures of statute. When, how, and under what circumstances they are to be made, and their effect when made, are matters depending upon the statute governing them. The decisions of the courts of other states throw more or less light on the case, according to whether such states have similar or dissimilar statutes. In many states a deed is not made to the purchaser at a tax sale until the time for redemption has elapsed, and is then made in such a manner, or upon such procedure, as the statute prescribes. In some certificates of sale are issued to the purchaser, to be held until the time allowed for redemption has expired, and, if no redemption is made, a deed is then executed. 2 Cooley on Taxation (3d Ed.) 982 et seq. In Georgia a deed is made at once by the selling officer, but the owner may redeem within the time fixed by law. In regard to the right of redemption from tax sales it has been said: "The statutes which give the right are to be regarded favorably and construed with liberality. *** But though the statutes are to be construed favorably, yet, as the right depends upon them, the person seeking to redeem must bring himself within their provisions." 2 Cooley on Taxation (3d Ed.) 1023, 1025. As between the purchaser at a tax sale and the person whose property is sold, the redemption extinguishes the title, and the land is restored as it was before the sale. 2 Cooley on Taxation (3d Ed.) 1051, 1052; Black on Tax Titles (2d Ed.) § § 377, 448. If the purchaser at a tax sale, within the time allowed for redemption and for the consideration of the redemption money, makes to the owner a deed of reconveyance, it creates no new title, but simply restores the property to the same position in which it was before the sale. See authorities just cited, and also Ivey v. Griffin, 94 Ga. 689, 21 S.E. 709; Morrison v. Whiteside, 116 Ga. 459, 42 S.E. 729. In Bourquin v. Bourquin, 120 Ga. 115, 119, 120, 47 S.E. 639, Mr. Justice Lamar, after referring to the effect of a tender of payment upon a security for a debt, says: "The same principle is applicable to a tender made by the owner for the purpose of redeeming from a tax sale, under Pol. Code 1895, § 909. Thereafter the purchaser's inchoate, qualified, or defeasible estate terminates." In McCalla v. Clark, 55 Ga. 53, it was said: "Tender of the debt on the...