Montford v. Allen

• Decision Date: 05 June 1900
• Citation: 36 S.E. 305,111 Ga. 18
• Parties: MONTFORD v. ALLEN et al.
• Court: Georgia Supreme Court

36 S.E. 305

111 Ga. 18

MONTFORD v. ALLEN et al.

Supreme Court of Georgia

June 5, 1900

Syllabus by the Court.

1. Under a provision in a city charter declaring that tax sales shall be advertised for 30 days, one insertion of the advertisement of such a sale in each calendar week during the period of 30 days immediately preceding the day of sale will suffice, provided the first insertion appeared at least 30 days before the sale.

2. Where, under a city charter, it is the duty of the marshal to collect executions for taxes and conduct sales thereunder the city clerk has no authority to postpone a tax sale, or grant indulgence to the defendant in the tax execution.

3. Whether a city has, under its charter, authority to issue an execution for an unpaid street tax or not, if an execution embracing such a tax also included a tax on property to which the property levied on was subject, neither the execution nor a sale thereunder, would be void merely because the street tax was included in the execution.

4. Under the law allowing 12 months in which to redeem property sold under tax executions, one whose property has been sold cannot redeem after the expiration of the 12 months. Our law does not recognize the existence of equitable grounds as a basis for extending the time within which redemption can be made. Upon the findings of the jury on the issues submitted to them, and an agreed statement of facts, there was no error in adjudging that the sale was valid.

Error from superior court, Sumter county; Z. A. Little john, Judge.

Action between O. C. Montford and H. E. Allen and others. From the judgment, Montford brings error. Affirmed.

R. L Maynard, for plaintiff in error.

Hooper & Crisp, for defendants in error.

COBB J.

1. The charter of the city of Americus provides "that it shall be the duty of the marshal to levy all executions in favor of the city, and after advertising for thirty days, he shall sell the property levied on before the court house door in Americus, on a regular sheriff's sale day, and between the legal hours of sheriff's sales." Acts 1889, p. 970. One of the questions raised in the present case is whether, under this provision in the charter, an advertisement inserted seven times in a newspaper published in the city of Americus, when the time elapsing between the first insertion and the date of the sale was 31 days, and there was at least one insertion for each calendar week embraced within such time, is an "advertising for thirty days," within the meaning of the charter. "Advertise" means "to give public notice of; to announce publicly,--especially by a printed notice." Webst. Int. Dict. It is to be noted that the charter does not require, in terms, that sales shall be advertised in a newspaper or gazette; but, conceding that the charter should be so construed, what is essential to meet the requirements of a law which says that a sale shall be had after advertising the same for 30 days? Construing such language strictly, it might bear the interpretation that notice shall be given in a newspaper every day during a period of 30 days. In the light of the purpose for which advertisement is given, in the light of other laws of the state relating to the manner of giving notice of sales and other transactions, would such a construction be a reasonable one? Can it be presumed that, in providing the way in which notice of tax sales in the city of Americus should be given, the general assembly intended that a sale should be void unless notice of the same was published every day, except Sunday, for a period of 30 days preceding the day of sale? Is there an act of the general assembly relating to public sales in which such a requirement is had? If so, our attention has not been called thereto. Is it to be presumed that the general assembly intended that a tax sale of this municipality should be governed by a rule which is entirely inconsistent with the uniform practice in the state in regard to public sales, as well as a rule which would impose upon the taxpayer a burden in the way of advertising fees which is not imposed upon any one else whose property is seized under judicial process? We are clear in our opinion that the general assembly did not so intend. Treating it as settled that the legislature did not intend by this provision in the charter of Americus that a tax sale should be advertised every day for 30 days, what was its intention with reference to the number of times a notice should be inserted within that period? There can be but one answer to this question, and that is that an advertisement appearing one time at least 30 days before the day of sale, and as near as practicable immediately preceding the beginning of that period, would be an advertising within the meaning of the charter. That would be giving 30 days' public notice of the sale, or announcing publicly that the sale was to take place at the expiration of that time; and, if the charter is to be construed as requiring advertisement in a newspaper, but one insertion of the advertisement at least 30 days before the sale, and as near as may be immediately preceding the beginning of that period, would be a compliance with the law. The charter requires either that the advertisement should appear every day for 30 days, or its appearance for one day 30 days before the sale would be sufficient. There is no escape from this. To hold that the charter required notice to be published every day would be to construe the law as requiring something which is not only unusual, but unreasonable. To hold that only one insertion of the notice was necessary would be giving a construction which would authorize a sale after advertising in a manner which is unusual, but not in a manner which is unreasonable, in so far as it regards the rights either of the public or the taxpayer; and, when a statute is susceptible of two constructions, the one which is the more reasonable should be adopted. It is to be noted that, as regards the effect of a failure to properly advertise, there is a distinction to be drawn between tax sales had in pursuance of the general law of the state, and those had in pursuance of a provision in a municipal charter. In the former the law in reference to notice is...