Greer v. Fergerson

• Decision Date: 25 May 1898
• Citation: 30 S.E. 943,104 Ga. 552
• Parties: GREER v. FERGERSON.
• Court: Georgia Supreme Court

30 S.E. 943

104 Ga. 552

GREER v. FERGERSON.

Supreme Court of Georgia

May 25, 1898

Syllabus by the Court.

1. Where the comptroller general followed the scheme provided for in the act approved February 28, 1874 (Acts 1874, p 105), in regard to execution against wild lands, it was not necessary for him to recite in an execution issued under that act that the lands had been unreturned, and that the taxes thereon had not been paid. (a) Were it otherwise, a deed made by the sheriff, under a sale in virtue of such a fi. fa., to a purchaser who went into possession of the land, and held it adversely for more than seven years, was admissible in evidence as color of title.

2. The absence of any paper or document from the records of any public office cannot be shown by a certificate of the clerk or other officer in charge of such records to the effect that such paper or document does not appear of record in his office.

Error from superior court, Dooly county; C. C. Smith, Judge.

Thomson & Whipple, for plaintiff in error.

Guerry & Hall, J. W. Haygood, and Busbee, Crum & Busbee, for defendant in error.

SIMMONS C.J.

The official report states the facts. From that report it appears that the land in controversy was sold in 1878 by the sheriff under a tax fi. fa. issued by the comptroller general of the state for taxes due for the years 1874, 1875, and 1876. The fi. fa. was issued under authority of the act approved February 28, 1874 (Acts 1874, p. 105). That act provided that "all persons owning unimproved or wild lands" in counties not the counties of their residence should return the same to the comptroller general if the owners are nonresidents of the state, or, where the owners are residents of the state, to the tax receiver of the county of their residence; that returns of residents of the state should be made by the 1st day of July in each year, and those by nonresidents by the 1st day of August in each year. The second section of the act required all persons owning wild lands to return the same by number, district, etc. The fourth section required each receiver of tax returns to make a separate and complete digest of all lands and parts of land in his county which had not been returned to him, and to forward a copy of the digest to the comptroller general's office. The fifth section provided that, when the several digests of the receivers of tax returns of the state should have been received by the comptroller general, it should be his duty to compare these returns with each other, and to make out a complete list, by number, section, district, and county, of all unimproved and wild lands not given in for taxes. The sixth section provided that, when such list was completed, the comptroller general should for thirty days (amended by the act of 1875 to once a week for four weeks) make advertisement of the same in one newspaper at the capital of the state, and in said publication require the owner of such lands to come forward, and give in said land and pay taxes thereon, and that in default the land should be sold in the county where it lay; that a copy of the list should be furnished the clerk of the superior court and ordinary of each county in the state, who should post the same in their offices. The seventh section declared that, on the expiration of the time of advertisement, the comptroller general should issue execution against all unimproved or wild lands not returned for state and county taxes, which execution should be directed to the sheriff of the county where the land lay, and that the sheriff should then proceed to advertise and sell under the same rules and regulations as govern other sheriff's sales. The scheme of the act was for the officers of the state to ascertain all the wild lands not returned for taxes, to make digests of the same, and to return those digests to the comptroller general. When he had compared all the digests of the different counties, it was his duty to make out a list of the unreturned wild lands, and send copies to the clerk and ordinary of the county where the land lay, to be posted in their offices. It was also the duty of the comptroller general to give notice to the owners of the wild lands by publication in a newspaper, so that these owners might be put upon notice that their wild lands had not been returned, nor the taxes paid thereon, and that the owners might have an opportunity of paying the taxes.

As far as appears from the record of the present case, all this was done before the comptroller general issued the fi. fa. There is no evidence that the officer mentioned did not follow the means provided by the act for giving notice to all owners of unimproved or wild lands of the facts above recited. These proceedings were in the nature of a citation by the state authorities...