Pannell v. Continental Can Co., Inc.

• Decision Date: 20 June 1977
• Docket Number: No. 75-3887,75-3887
• Citation: 554 F.2d 216
• Parties: N. B. PANNELL, Jr., et al., Plaintiffs-Appellants, v. CONTINENTAL CAN COMPANY, INC., Defendant-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 216

554 F.2d 216

N. B. PANNELL, Jr., et al., Plaintiffs-Appellants, v. CONTINENTAL CAN COMPANY, INC., Defendant-Appellee.

No. 75-3887.

United States Court of Appeals, Fifth Circuit.

June 20, 1977.

John T. Avrett, Charles A. Pannell, Jr., Dalton, Ga., Robert E. Knox, Jr., Thomson, Ga., for plaintiffs-appellants.

W. Spencer Connerat, Jr., Nell C. Pillard, Savannah, Ga., for defendant-appellee.

Appeal from the United States District Court for the Southern District of Georgia.

Before WISDOM and GEE, Circuit Judges, and BOOTLE ^*, District Judge.

BOOTLE, District Judge:

The plaintiffs N. B. Pannell, Jr., Paul Anderson Pannell, and Dollie Bennie Pannell on February 26, 1974 brought an ejectment suit in the Superior Court of McDuffie County, Georgia against Continental Can Company, Inc. (Continental) seeking recovery of 1,248 acres of land, together with rents, mesne profits, and punitive damages. Continental caused the case to be removed to the U. S. District Court, Southern District of Georgia on grounds of diversity. There the case was tried before a jury, resulting in a verdict favorable to the defendant. Having carefully considered the various issues presented by appellants for review, we affirm.

The Case

Under the will of T. A. Pannell who died in 1922, a resident of Murray County, Georgia, he left 1,327 acres, more or less, to his son, N. B. Pannell for life with remainder to his children (1,248 acres of that land is the land in dispute here). The land lies in McDuffie County, Georgia. Neither the will nor the probate proceedings in Murray County were recorded in McDuffie County, Georgia until long after the making of all sales and conveyances here involved. N. B. Pannell, after this inheritance, lived on the land and farmed it until he and his family moved away "about 1924." He died in 1954.

All 1,327 acres were sold for unpaid state and county ad valorem taxes for the years 1923 through 1932, there being eight separate tax deeds executed beginning March 19, 1925 and ending April 3, 1933, the deed dated March 19, 1925 representing sales for 1923 and 1924 taxes and the deed dated April 2, 1930 also representing sales under two writs of fieri facias for taxes (tax fi. fa.'s), apparently for years 1927 and 1928. One V. S. Moore was the purchaser at five of these sheriff's sales, and the evidence would support a finding that he and his wife eventually acquired title to all property conveyed by these tax deeds and thus acquired the entire 1,327 acres and possessed the same adversely from the respective dates of sale until they sold same as hereafter stated. Each tax fi. fa. was levied on a separate described (and usually platted) portion of the larger tract, these portions ranging from 90 to 212 acres. The 1,327 acres thus acquired by the Moores (including the 1,248 acres here in dispute) constituted one contiguous tract which was contiguous also to other lands owned by the Moores.

Mr. and Mrs. Moore adversely possessed the disputed premises with other lands under said tax deeds until December 31, 1956 at which time they sold by general warranty deed 1,574.5 acres of their larger tract, which conveyance included the disputed premises, to Cherokee Timber Corporation (Cherokee), Continental's immediate predecessor in title, for $43.50 per acre. Mr. Lon L. Fleming, a then local practicing attorney, examined the title for the purchaser and with full knowledge of the terms of T. A. Pannell's will and of said tax deeds, gave a title opinion to the effect that said warranty deed would vest a good merchantable title in the purchaser. On October 5, 1957 Cherokee conveyed the 1,574.5 acres by general warranty deed to Gair Woodlands Corporation (Gair). Continental has succeeded to all rights of Gair by corporate mergers.

Appellants challenge certain of the district court's rulings with respect to the tax deeds, the admission of Mr. Fleming's opinion testimony, the sufficiency of the evidence generally to show title by presumption and its refusal to apply the Soldiers' and Sailors' Civil Relief Act to Colonel N. B. Pannell, Jr.

The Tax Deeds

Appellants objected generally to the admission into evidence of the eight tax deeds. The only ground of objection urged was that they were being offered "without attaching the executions or the levies thereon." The objection was invalid and the deeds were properly admitted. "A sheriff's deed to land, executed to one who purchases at a tax sale, though not accompanied by the tax fi. fa. under which the land was sold, is good as color of title." Peeples v. Wilson, 140 Ga. 610, 79 S.E. 466 (1913).

Moreover a tax deed even though void for any reason is such color of title as will support prescription by seven years' adverse possession. Smith v. Jefferson County, 201 Ga. 674, 40 S.E.2d 773 (1946).

Appellants complain further of this portion of the court's charge: "In this case, if you were to find that V. S. Moore, or Vic Moore and his wife, got good title to this land and, thereafter, conveyed it to the predecessor in title or in claim to Continental, why in that event you'd have to find for the defendants." This complaint merits some discussion. It assumes that the tax executions were in personam rather than in rem. If all or any of these tax deeds represented in rem assessments, levies and sales the purchaser under such deed or deeds acquired "a good title as against the whole world." Ga.Code Ann. § 92-8103, Gross v. Taylor, 81 Ga. 86, 6 S.E. 179 (1888). While all these proceedings were probably in personam, rather than in rem, and some of them certainly were, as to others, there may be some room for doubt. ¹

But if we assume that all the proceedings were in personam the appellants are not entitled to a reversal. Their reliance is, of course, upon the rule that "where land is held by a life tenant, and taxes are assessed against him and executions issued in personam only, a sale under the levy of such executions passes only the life estate." Dixon v. Evans, 222 Ga. 133, 136, 149 S.E.2d 124, 127 (1966); Howell v. Lawson, 188 Ga. 164, 3 S.E.2d 79 (1939). There is an important exception to that rule. It was ironed out by Chief Justice Duckworth in Townsend v. McIntosh, 205 Ga. 643, 54 S.E.2d 592 (1949) as follows:

Under the decisions of this court, where nothing further appears, a purchaser at a sale under a tax execution in personam against a life tenant acquires only the life estate, but where, as here, it further appears that the life tenant is in possession, that the whole property was levied upon, and that the execution embraces only the taxes upon the specific property, the purchaser acquires title to the fee, and the whole property, including the remainder estate, as well as the life estate, passes. ²

Happily for this court the Supreme Court of Georgia as currently as September 29, 1976 in Pannell v. Moore, 237 Ga. 761, 229 S.E.2d 603 has applied the Townsend rule to the first two tax deeds at issue here, the 1925 deed for 1923 and 1924 taxes, and the 1926 deed for 1925 taxes. When the Moores sold to Cherokee, Continental's predecessor in title on December 31, 1956, they retained 85.81 acres from the Pannell 1,327-acre tract and these 85.81 acres were later conveyed to their son, J. W. Moore. The 85.81 acres were a part of the lands conveyed by the two tax deeds in 1925 and 1926. The remaining portions of the lands conveyed by these two sheriff's deeds were acquired by Continental. The 85.81 acres were the subject matter of an ejectment action brought by the same plaintiffs who are appellants here. The two ejectment suits were filed the same day. The effect of this recent decision by the Supreme Court of Georgia was to dismiss the suit and to affirm title in the defendants as a matter of law. The appeal to the Supreme Court of Georgia was from the grant of a summary judgment for the defendants and from failure to strike said two deeds offered by defendants in support of their motion for summary judgment.

Pannell v. Moore, supra, is fairly dispositive of all tax deed questions here. As previously observed no valid objection was urged to the admission of all these deeds into evidence. The challenged instruction was, under this recent decision, patently correct as related to the first two deeds ³ (the first three tax years) and since the exception was broadside to the charge as given and was not discriminating and contained no suggestion or request that the charge be modified so as to apply only to said two deeds it was non meritorious. Rule 51, Fed.R.Civ.P.; Palmer v. Hoffman, 318 U.S. 109, 118, 63 S.Ct. 477, 482, 87 L.Ed. 645, 653 (1943), Investment Serv. Co. v. Allied Equities Corp., 519 F.2d 508, 510 (9th Cir. 1975)), and Delancey v. Motichek Towing Serv., Inc., 427 F.2d 897, 900 (5th Cir. 1970). This is not to suggest that the charge was not also correctly applicable to all of the deeds. In Pannell v. Moore, supra, the court said:

The first question to be considered is the admissibility in evidence of such tax deeds. Each deed was regular on its face, showing the issuance of a writ of fieri facias issued by the tax collector on the account of nonpayment of taxes, that the land had lately been seized as the property of N. B. Pannell, and the plat attached represented the tract of land levied upon.

Then after quoting the Townsend v. McIntosh rule, supra, the court continued:

In this case the evidence submitted in support of the motion for summary judgment submitted by the defendants showed that the life tenant was in possession during the years covered by the first tax execution, that the whole property covered by such tax deed was levied upon and that the execution embraced only taxes upon the property covered by the life estate inasmuch as the defendant in the tax execution owned no other property in McDuffie County.

And that is not all. The court went further and held that since the evidence showed possession by H. B. Pannell in 1922, 1923, and 1924,...