Interstate Bond Co. v. Cullars

• Decision Date: 19 October 1939
• Docket Number: 13007,13008.
• Parties: INTERSTATE BOND CO. v. CULLARS. CULLARS v. INTERSTATE BOND CO.
• Court: Georgia Supreme Court

5 S.E.2d 756

189 Ga. 283

INTERSTATE BOND CO. v. CULLARS.

CULLARS v. INTERSTATE BOND CO.

Nos. 13007, 13008.

Supreme Court of Georgia

October 19, 1939

Rehearing Denied Nov. 17, 1939.

Syllabus by the Court.

1. On presentation, under the Code, § 39-1313, of an application, by a purchaser at sheriff's sale under tax executions, to be placed in possession of land, the application reciting that a certain person was in possession by, through, or under the defendant in execution, the judge issued a rule nisi directed to the sheriff and to the person in possession; and in response that person demurred on the grounds: (a) That it was not alleged that the respondent was the defendant in execution, his heir or tenant, or one of his assignees since the judgment; (b) that it was not alleged that the levy was not excessive; and (c) that the defendant in execution was not made a party. Held that it was not error to refuse to dismiss the application on the demurrer.

2. A demurrer which is speaking in character should be overruled.

3. A purchaser at a sale which is void because the levy is excessive, whose money is applied to the extinguishment of a lien on the property sold, is entitled, in defense to a suit by the owner or his assignee to declare such sale void, to have the court decree, as a condition that it will grant the prayer to cancel the purchaser's deed, that such purchaser be reimbursed to the extent that the purchase-money was used to pay off a valid and subsisting lien upon the property.

4. Where the sole issue submitted to the jury was whether or not the levy was excessive, it was erroneous to charge that 'The question for you to determine, and the only question for you to determine, is whether the levy on the tract of land was an excessive levy, that is, too much land levied on for the purpose of realizing the amount of the fi. fas.,' there being no instruction in connection therewith, or elsewhere in the charge, as to what would constitute 'too much land.'

Since a new trial must be granted because of the error in the charge, no ruling will be made on the general grounds of the motion.

In July, 1938, Interstate Bond Company presented to the judge of the superior court its petition alleging that tax executions for certain years were duly issued against one Loflin as the owner of certain real estate; that the executions were duly transferred to petitioner, and the transfer was entered on the execution docket; that the sheriff duly and legally levied the executions on the described real estate, Loflin being at the time in possession of the same and having returned it for taxes; that the property was duly advertised for sale; that the tax sale took place on a named date; that petitioner was the highest and best bidder at the sale, and the property was knocked off to it on payment of a stated sum, which was the amount of the tax fi. fas.; and that the sheriff thereupon executed and delivered to petitioner a deed to the property so sold, and this deed was duly recorded that all this took place more than twelve months before the bringing of the petition; that the property had not been redeemed; and that one Cullars 'is in possession of said property by, through, or under the defendant against whom said fi. fas. were issued.' The petitioner prayed for an order of the court directing the sheriff then in office (the former sheriff who executed the deed to petitioner having died) to put petitioner in possession and to dispossess the defendant in fi. fa., and any person claiming by, through, or under him.

The court passed an order requiring that the petition be served on the sheriff and on Cullars, and that they show cause before him, on a date named, why the prayers of the petition should not be granted. To this order and to a refusal by the court to pass an order directing the sheriff to put the petitioner in possession, exceptions pendente lite were taken. The sheriff served the petition on Cullars, but did not himself make response. Cullars filed his response, admitting the allegation that he was 'in possession by, through, or under the defendant against whom the fi. fas. were issued.' He did not state that he held any deed of any character; but he attacked the tax sale made to the petitioner, on the ground that it was void because of an excessive levy. The property sold at the tax sale was 294 acres of land, and the price paid at the sale was $568. The petitioner objected to the proceedings, and objected to Cullars being heard in opposition to the granting of the order prayed for, and to petitioner's attack on the sale because of excessive levy. The court passed an order adjudging that the answer of Cullars raised questions of fact to be submitted to a jury, and directed that the petition and all other pleadings be filed and the case docketed for trial before a jury. To this order the petitioner excepted pendente lite. The petitioner presented an amendment alleging that Loflin was in possession when the tax sale was made, and that Cullars claimed under a chain of title originating in Loflin and devolving from him subsequently to the said levy and sale, and that a term of court had passed since such tax sale. A demurrer to the response of Cullars was overruled, and the petitioner excepted pendente lite. In another amendment to the petition it was prayed that, should the court rule that Cullars's title was good, it be ruled that petitioner's payments made for the tax executions and at the tax sale become liens on the property. Cullars's demurrer to the petition as amended was overruled, and he excepted pendente lite. At the trial the judge submitted to the jury but one question, whether the tax levy was excessive. Petitioner objected to the right of Cullars to raise that question, and excepted pendente lite to the court's order. The jury returned a verdict in favor of Cullars. The plaintiff excepted, assigning error on the rulings stated above.

B. W. Fortson, of Washington, for plaintiff in error.

Earle Norman, of Washington, for defendant in error.

GRICE Justice.

1. When Interstate Bond Company, the purchaser at the tax sale, applied to the judge of the superior court, under the Code, § 39-1313, for an order directing the sheriff to put it in possession, the judge issued a nisi directed to the sheriff and to Cullars, the tenant in possession, to show cause why the order prayed for should not be granted. At the hearing, after the application had been amended, Cullars demurred thereto; and his demurrer being overruled, he excepted. One ground of demurrer was that the applicant failed to allege that the respondent was the defendant in execution, his heir or tenant, or one of his assignees since the judgment. It was stated in the application that applicant was the purchaser under certain tax executions against J. T. Loflin, and that the property so purchased was in the possession of T. W. Cullars, who had said possession by, through, or under the defendant against whom said fi. fas. were issued. That ground of the demurrer was without merit. The position of counsel is that under the Code, § 39-1309, and other applicable provisions of the law, no person other than the defendant, his heirs, or their tenants or assigns since the judgment can be summarily evicted from land by virtue of a sale under execution. The Code, § 92-8102, declares that sales under tax executions shall be made under the rules governing judicial sales; and § 92-8108 provides that, as to such sales, the officer selling has the authority to put purchasers in possession of land sold under tax fi. fas. as in other cases. Another ground of demurrer was that the value of the property was not alleged, nor was there an allegation that the levy was not excessive. This ground is without merit. The only reason suggested why, in an application of this kind, the value of the property should be set forth is that it would tend to show whether or not the levy was excessive; but this contention, if sustained, would be to eliminate the principle that there is a presumption that the sheriff did his duty, and therefore did not make an excessive levy. The only other ground of demurrer argued is that Loflin, the defendant in execution, was a necessary party. The application under the Code, § 39-1312, or § 39-1313, is not a suit. Strictly speaking, there are no parties to it. The provision for summary process contains no requirement for notifying the defendant in fi. fa. or any one else. It was not erroneous to overrule the demurrer. These rulings dispose of the cross-bill of exceptions.

2. While counsel for the plaintiff assigned error on the issuing of a rule nisi on the application originally presented to the court, in his brief he expressly abandons that exception. Therefore we have not for decision any question as to what is the correct procedure when such an application is presented. Compare Williamson v. White, 101 Ga. 276, 278, 28 S.E. 846, 65 Am.St.Rep. 302. In responding to the rule nisi Cullars filed a demurrer, an answer, and a cross-action in which affirmative equitable relief was sought, to wit, that title to the property be decreed in him, that the sheriff's deed be canceled, and for general relief. His demurrer was overruled, and in the first division of this opinion we have affirmed that ruling. What began as a simple application to the court by a purchaser at a sheriff's sale for an order to be placed in possession of the property was by the answer converted into a suit in equity to determine whether or not the sheriff's deed to the purchaser should be canceled The bill of exceptions contains a recita to that effect, and counsel for both sides have so treated it in their briefs. We shall accordingly so deal with the case. The plaintiff's demurrer was...