Pannell v. Moore, 31431

• Decision Date: 29 September 1976
• Docket Number: No. 31431,31431
• Citation: 237 Ga. 761,229 S.E.2d 603
• Parties: N. B. PANNELL, Jr., et al. v. Mrs. Laverne W. (Joe W.) MOORE, Extrx., et al.
• Court: Georgia Supreme Court

Page 603

229 S.E.2d 603

237 Ga. 761

N. B. PANNELL, Jr., et al. v. Mrs. Laverne W. (Joe W.) MOORE, Extrx., et al.

No. 31431.

Supreme Court of Georgia.

Sept. 29, 1976.

Rehearing Denied Oct. 19, 1976.

Pittman, Kinney, Kemp, Pickell & Avrett, John T. Avrett, Charles A. Pannell, Jr., Dalton, knox & Evans, Robert E. Knox, Thomson, for appellants.

Burnside, Dye, Miller & Bowen, Montague Miller, James B. Wall, Augusta, Albert H. Dallas, William M. Wheeler, Thomson, for appellees.

NICHOLS, Chief Justice.

The appeal in this case is from a judgment granting the defendants in the trial court a summary judgment and denying a partial summary judgment for the plaintiffs. Error is also assigned upon the failure of the trial court to strike certain exhibits offered by the defendants in support of their motion for summary judgment, to wit: sheriff's deeds.

1. Upon the death of his father in 1922, N. B. Pannell inherited a life estate in a tract of land located in McDuffie County, Georgia. In 1925 and again in 1926, portions of such tract of land were sold by the sheriff under fi. fa. issued by the tax collector of McDuffie County. The 1925 sale resulted from unpaid taxes due for the years 1923 and 1924, while the 1926 sale was for taxes due for the year 1925. 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. Under decisions exemplified by Livingston v. Hudson, 85 Ga. 835(1), 12 S.E. 17 (1890), and Bennett v. Southern Pine Co., 123 Ga. 618, 622, 51 S.E. 654 (1905), as well as the Act of 1952 (Ga.L.1952, p. 169) (Code Ann. § 38-636) and the Act of 1965 (Ga.L.1965, p. 250) (Code Ann. § 38-641), the trial court did not err in refusing to strike the deeds submitted by the defendants in the trial court when considering the motions for summary judgment. See also Code § 38-114.

2. 'Under the decisions of this court, where nothing further appears, a purchaser at a sale under a tax execution in personam against a life 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.' Townsend v. McIntosh, 205 Ga. 643, 54 S.E.2d 592 (1949).

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.

The second tax deed was for taxes due in 1925 and was executed in 1926. It is well settled that once a status has been proved, it is presumed to continue to exist. The evidence was undisputed that N. B. Pannell was in possession of the...