Harris v. Smith

• Decision Date: 12 October 1909
• Parties: HARRIS. v. SMITH
• Court: Georgia Supreme Court

65 S.E. 883

133 Ga. 373

HARRIS.

v.SMITH

Supreme Court of Georgia.

Oct. 12, 1909.

Appeal and Error (§§ 588, 908^*)—Review— Record—Directing Verdict—Ejectment. The evidence in this case demanding a finding that the plaintiff was entitled to recover the property in controversy, the court did not err in directing a verdict accordingly.

[Ed. Note.—For other cases, see Appeal and Error, Cent Dig. § 3077; Dec. Dig. §§ 588, 908.*]

(Syllabus by the Court.)

Error from Superior Court, Irwin County; V. V. Whipple, Judge.

Action by M. B. Smith against W. M. Harris. Judgment for plaintiff, and defendant brings error. Affirmed.

J. T. Hill and J. J. Walker, for plaintiff in error.

Haygood & Cutts and Rogers & Heath, for defendant in error.

BECK, J. Maggie B. Smith brought complaint for land against W. M. Harris. It was agreed between the plaintiff and defendant that the title to the property in controversy was shown to have been at one time in J. A. J. Henderson and the Savannah Building Company. The plaintiff introduced a deed from Henderson and the Building Company, conveying this property to N. T. Creel, dated November 13, 1897, and recorded July 12, 1898; also a deed to the same property from N. T. Creel and Ida Creel (his wife) to the plaintiff, dated August 6, 1905, and duly recorded November 29, 1907. The defendant's chain of title begins with a tax deed from D. A. McInnis, sheriff, with a tax fi. fa. against Mrs. N. T. Creel, issued by D. J. Hogan, tax collector of Irwin county, attached, dated March 1, 1904; said deed being executed to L. L. Harper. There were other conveyances by intermediate grantors from L. L. Harper to the defendant. At the conclusion of the evidence for both parties, upon motion, the court directed a verdict for the plaintiff. One of the grounds upon which the motion was based is as follows: "Because the fi. fa. is void under which the property was sold, in that it fails to contain any of the jurisdictional recitals necessary under the law to make it valid."

He who complains of error must show error. The tax fi. fa., which was the foundation of a deed constituting an essential link in the defendant's chain of title, does not appear in the brief of evidence. If, as alleged in the motion of the plaintiff to direct a verdict in her favor, the fi. fa. did not contain the necessary jurisdictional recitals to make it valid, then the deed based upon the same was void. "Since a tax execution is not founded upon the judgment of any court, but is...