Cannon v. Gorham

• Decision Date: 13 April 1911
• Parties: CANNON v. GORHAM.
• Court: Georgia Supreme Court

71 S.E. 142

136 Ga. 167

CANNON v. GORHAM.

Supreme Court of Georgia

April 13, 1911

Syllabus by the Court.

Where an execution for unpaid taxes was issued by the Comptroller General against a certain tract of unreturned wild land under the act of February 28, 1874 (Acts 1874, p. 105), and a sale of the land was made thereunder, and the execution was returned to the Comptroller's office with the official entries thereon, it became an office paper, and a certified copy of such execution and entries was admissible in evidence in lieu of the original.

The inclusion in a form of sheriff's deed, in describing the tax execution, of the expression "transferred to ..., of ...county," did not vitiate the sale, or render the deed inadmissible in evidence, where it appeared from the entries on the execution that no transfer of it was in fact made, and no evidence to the contrary was adduced.

Where a deed, purporting to have been made by a corporation, recited that its corporate name was signed by the president and the corporate seal attached by the secretary, and the name of the corporation was signed by the president and followed by "(L. S.)," this was prima facie evidence of authority on the part of the president to execute such deed.

(a) If the deed was duly recorded and lost, a certified copy from the record was admissible in evidence, without further proof of the authority to execute it.

Under the act of February 28, 1874 (Acts 1874, p. 105), amended by the act of March 2, 1875 (Acts 1875, p. 119), the prescribed advertisement of unreturned wild or unimproved land was necessary before the issuance of execution for the tax assessed against it. An execution issued without such precedent advertisement was void, and no valid sale could be made thereunder.

If the Comptroller General failed to publish the requisite notice as to a lot of wild land for one year, and later issued an execution for a single amount, as including the taxes due on the lot for that and two other years, a sale under such execution was invalid.

Where a legislative act required the publication of a notice "in one newspaper at the capital" once a week for four weeks, as a condition precedent to the issuance of an execution for taxes against a tract of wild or unimproved land, this requirement was not met by the publication of such notice twice in a daily newspaper and twice in a weekly though both were published by the same publisher, and the weekly was made up largely of news items taken from the daily; the two having different advertising accounts, being sent to different sets of subscribers, mainly in different localities, and being shown to be like two separate newspapers, except as stated.

(Additional Syllabus by Editorial Staff.)

The letters "L. S.," placed after the signature of a person or corporation, are an abbreviation of "locus sigilli," meaning "the place of the seal," and are usually inserted within brackets in copies of documents to indicate the position of the seal in the original.

Where notice to pay taxes assessed on unimproved or wild land has been duly published as required by Acts 1874, p. 105, as amended by Acts 1875, p. 119, mere delay for two or three years in issuing an execution for the tax of a specified year, for which publication was made, would not invalidate it.

Error from Superior Court, Wilcox County; U. V. Whipple, Judge.

Ejectment by W. M. Gorham against Oscar Cannon. Judgment for plaintiff and defendant brings error. Reversed.

M. B. Cannon, J. G. Cranford, E. K. Wilcox, and Edgar Watkins, for plaintiff in error.

Hal Lawson and E. H. Williams, for defendant in error.

LUMPKIN J.

Gorham brought an action of ejectment against Cannon. The plaintiff claimed by virtue of a chain of title beginning with a tax sale under an execution issued by the Comptroller General against the land in dispute as wild or unimproved land, under the act of 1874 (Acts 1874, p. 105), amended by the act of 1875 (Acts 1875, p. 119). The defendant claimed under a chain of title extending back to the original grant from the state. The case turned upon the validity of the tax sale. The presiding judge directed a verdict in favor of the plaintiff.

1. Objection was made to the introduction in evidence of a transcript of the execution and entries thereon certified by the Comptroller General, in whose office the execution was on file after the sale. The act of 1874 provided that the Comptroller General should issue the execution, and that the sheriff should make the sale and make returns thereof. When this was done, the paper became a document or paper of file in the Comptroller General's office, and a certified copy of the execution and entries was admissible in evidence. Civil Code 1910, § 5798; 17 Cyc. 329.

2. The sheriff apparently used a form of deed, in which was a clause for use if the execution had been transferred. After describing the execution, the deed contained these words: "Which said execution has been duly transferred by said comptroller to ..., of ...county." The execution, with the entries upon it, showed no transfer, nor was there any other evidence of one. This furnished no ground for excluding the deed from evidence.

3. Several points were raised as to the introduction of a certified copy of an established copy of a deed. But a certified copy of the original deed from the record was introduced, and the only material questions were whether it sufficiently appeared that the corporate seal of the company named as the grantor was attached to the deed, and that the person signing as president had authority to execute it. There was evidence that the person so signing was the president of the company. The certified copy from the record contained a statement that the corporation had caused its corporate name to be signed by its president and its corporate seal to be attached by its secretary. It was signed, "The Savannah, Americus & Montgomery (L. S.), by S. H. Hawkins, President (L. S.)," and was duly attested. The absence of the original being sufficiently accounted for, a certified copy from the proper record is admissible to show the existence, genuineness, and contents of the deed. Eady v. Shivey, 40 Ga. 684; Holtzclaw v. Edmondson, 114 Ga. 171, 39 S.E. 849. If a deed is executed in the name of a corporation by its proper officer, with the corporate seal attached, a presumption of authority on his part to execute it arises, and this is a sufficient prima facie showing to admit the deed in evidence. Solomon's Lodge v. Montmollin, 58 Ga. 547; Carr v. Georgia Loan & Trust Co., 108 Ga. 757, 33 S.E. 190; Dodge v. American Freehold, etc., Co., 109 Ga. 394, 34 S.E. 672; Almand & George v. Equitable Mortgage Co., 113 Ga. 983, 39 S.E. 421.

Section 5 of the Code of 1910 declares that the word "'seal' shall include impressions on the paper itself, as well as impressions on wax or wafers. With the exception of official seals, a scrawl, or other mark intended as a seal, shall be held as such." No distinction is made in this statute between the seal of a corporation and that of an individual. The letters "L. S." are an abbreviation of "locus sigilli," the place of the seal; and it has been said that they are "usually inserted within brackets in copies of documents to indicate the position of the seal in the original." Century Dictionary. A clerk, in recording a deed of a corporation on which a seal is impressed, probably would not often attempt to make an exact reproduction of the seal, with all the insignia, marks, or emblems which might be upon it. It would hardly be held that his inability to do so would destroy the right to introduce certified copies of such deeds. But treating the copy as in this respect identical with the original, it is a matter of common knowledge that these letters,...