Harris Orchard Co. v. Tharpe

• Decision Date: 12 July 1933
• Docket Number: 9633.
• Citation: 170 S.E. 811,177 Ga. 547
• Parties: HARRIS ORCHARD CO. v. THARPE, Tax Collector, et al.
• Court: Georgia Supreme Court

170 S.E. 811

177 Ga. 547

HARRIS ORCHARD CO. v. THARPE, Tax Collector, et al.

No. 9633.

Supreme Court of Georgia

July 12, 1933

Rehearing Denied Sept. 14, 1933.

Syllabus by Editorial Staff.

Statutory rule against judicial interference in tax levies does not apply where exaction is unconstitutional, law neither imposes tax nor authorizes execution, defendants do not occupy official positions alleged in execution, and execution issued for taxes has been properly returned and paid (Civ. Code 1910, § 1163).

In claim case, claimant may set up invalidity of fi. fa, and may also attack levy on ground that it is arbitrary and unreasonble division (Civ. Code 1910, § 1159).

Plaintiff having adequate remedy at law cannot enjoin tax sale (Civ Code 1910, § 1163).

In suit to enjoin sale for 1930 taxes of portion of taxpayer's property sold for 1929 taxes, at time when 1930 taxes were also due and unpaid, statutory inverse order of alienation rule held inapplicable (Civ. Code 1910, §§ 1167, 1176, 6029, 6051, 6054).

Error from Superior Court, Peach County; Louis L. Brown, Judge.

Petition for injunction by the Harris Orchard Company against T. E Tharpe, Tax Collector, and others. To review a judgment refusing the injunction, petitioner brings error.

Affirmed.

RUSSELL C.J., dissenting.

W. H. Harris, of Fort Valley, for plaintiff in error.

Louis L. Brown, Jr., of Fort Valley, for defendants in error.

Syllabus OPINION.

GILBERT, Justice.

The exception is to a judgment refusing to enjoin a tax sale. The land on which a fi. fa. for state and county taxes was levied, and which was being advertised for sale thereunder, was bought by the petitioner in January, 1931, at a sale under a fi. fa. for 1929 taxes. At the time of the sale, there was also an outstanding lien on the property purchased for state and county taxes for the year 1930. Both tax fi. fas., that is, for 1929 and 1930, were issued in personam. Both were general executions, and not special against the land for taxes on it alone by name.

1. "No replevin shall lie, nor any judicial interference be had, in any levy or distress for taxes under the provisions of this Code, but the party injured shall be left to his proper remedy in any court of law having jurisdiction." Civil Code 1910, § 1163.

2. The Code section just quoted states the general rule, to which there are some exceptions: (a) An unconstitutional exaction, because what is then called a tax is no tax. Green v. Hutchinson, 128 Ga. 379, 57 S.E. 353. (b) Where the law does not impose the tax or authorize the execution, for the same reason. Hewin v. Atlanta, 121 Ga. 723, 49 S.E. 765, 67 L.R.A. 795, 2 Ann.Cas. 296. (c) Where the defendants did not occupy the official positions alleged in the executions. Mayo v. Renfroe, 66 Ga. 408. (d) Where an execution issued for taxes which had been properly returned and taxes paid. Nalley v. McManus, 135 Ga. 713, 70 S.E. 255. There are doubtless other exceptions.

3. "When property is levied on under a tax fi. fa. issued either by the comptroller-general or tax-collector, it may be claimed by a third person and tried in the same manner as other claims are, except that the claimant shall give a bond and security for the eventual condemnation-money, and if found subject, such claimant and his sureties shall be in all respects liable as on appeal bond." Civil Code 1910, § 1159; Racine Iron Co. v. McCommons, 111 Ga. 536 (2), 36 S.E. 866, 51 L.R.A. 134; Campbell v. Board of Drainage Commissioners, 156 Ga. 64, 118 S.E. 720; Herrington v. Ashford, 157 Ga. 810, 122 S.E. 197.

4. "A claimant may set up invalidity of the fi. fa., on the trial of the claim case. Wheeler v. Martin, 145 Ga. 164, 88 S.E. 951." Campbell v. Board of Drainage Commissioners, supra. The claimant may also contest the validity of the levy, on the contention that it is an arbitrary and unreasonable division.

5. "The plaintiff had an adequate remedy at law; and having such, whether or not the fi. fa. was void, injunction was not an appropriate remedy. Douglas v. Jenkins, 146 Ga. 341, 91 S.E. 49, Ann.Cas. 1918C, 322; Racine Iron Co. v. McCommons, 111 Ga. 536, 36 S.E. 866, 51 L.R.A. 134." Campbell v. Board of Drainage Commissioners, supra.

On Motion for Rehearing.

6. Civil Code 1910, § 6029, which provides: "Where property is subject to a lien and part of it is sold by the debtor, the part remaining in him should be first applied to the payment of the lien. If the property subject to such lien is sold in several parcels at different times, the parcels should be charged in the inverse order of their alienation," has no application to the issues raised in this case, where a portion of a taxpayer's property was sold for taxes for the year 1929, and at the time of the sale the taxes were also due and unpaid for the year 1930, and it is sought to enjoin the sale of the same property under sale for 1930 taxes.

Judgment affirmed.

All the Justices concur, except RUSSELL, C.J., who dissents.

On Motion for Rehearing.

GILBERT Justice.

The plaintiff moves for a rehearing, insisting that the court overlooked "the main question in the case." Movant states: "Counsel is in perfect agreement with the court on the decision as made, if the case presented only the issue named therein," and "The overlooked portion of the petition is so important that if it were not actually in the case, the very foundation of the case, and admittedly the only cause for injunctive re-lief [talics ours], counsel could not make the certificate required in a motion for rehearing, for the decision would be in exact accord with counsel's view of the laws applicable to the facts as stated in the opinion." The main question to which movant refers is the contention that Civil Code 1910, § 6029, is applicable to the facts of the case. That section is as follows: "Where property is subject to a lien and part of it is sold by the debtor, the part remaining in him should be first applied to the payment of the lien. If the property subject to such lien is sold in several parcels at different times, the parcels should be charged in the inverse order of their alienation." Movant cites a number of cases in which that section was applied, to wit, Craigmiles v. Gamble, 85 Ga. 439, 11 S.E. 838; Clark v. Monroe County Bank, 33 Ga.App. 81, 125 S.E. 603; Columbia Trust & Realty Co. v. Alston, 163 Ga. 83, 135 S.E. 431; Merchants' National Bank v. McWilliams, 107 Ga. 532, 33 S.E. 860; Douglas v. Hannahatchee Ranch Corporation, 168 Ga. 238, 147 S.E. 518. That Code section was not overlooked, but at the time it was not deemed essential to specially deal with the question, However, the question will now be decided. At the threshold of the discussion it will be noted that the section in terms applies where property "is sold by the debtor." All of the decisions cited by the movant were in cases where property incumbered by liens was sold by a debtor. Craigmiles v. Gamble, supra, from which the Code section is said to have had its origin, was such a case. The decision in that case merely followed Cumming v. Cumming, 3 Ga. 460, also such a case. It is significant that in both the Craigmiles and the Cumming Cases the first purchaser obtained a conveyance "containing a clause of warranty of the title against all persons claiming under" the grantor. Civ. Code, § 6029, is based upon the manifest justice and equity that, when an owner of land on which a lien has attached sells a part, there is left to him or his subsequent grantee a part which should first be subjected to payment of the lien. When a part of the land is sold for taxes, the state does not retain the portion not sold. That portion is in no way under the control of the taxing authority. The state is not concerned with the rights of the owners of the several portions of land with respect to which portion shall pay the taxes.

The sovereign state cannot be hampered or bound in any way by the acts of the original owner of the land, or by any failure of such owner to act. The collection of taxes is essential to the life of the government. The government cannot be delayed and may levy upon any property subject to a tax for the collection thereof. The lien for the tax remains on the property until the tax is paid. We think that no case will be found in the decisions of this court contrary to what is here stated. All of the cases to which the principles of the Code sectio...