Stith v. Hudson
| Decision Date | 03 December 1973 |
| Docket Number | No. 28288,28288 |
| Citation | 231 Ga. 520,202 S.E.2d 392 |
| Parties | Henry Hammond STITH, Sr., et al. v. Ballard HUDSON et al. |
| Court | Georgia Supreme Court |
Syllabus by the Court
1. The complaint stated a claim upon which relief may be granted.
2. The complaint was not improperly amended.
3. The tax collector was not an indispensable party.
4. The action was not barred by the statute of limitation.
Webb, Parker, Young & Ferguson, John Tye Ferguson, Atlanta, for appellants.
James F. Cox, Atlanta, Millard C. Farmer, Jr., Newnan, Hansell, Post, Brandon & Dorsey, Terrence Lee Croft, Atlanta, for appellees.
The only question upon appeal in this action involving title to land is whether the amended complaint should have been dismissed.
The action was originally filed on September 5, 1969, in the Superior Court of Fulton County by the appellants Henry Hammond Stith, Sr., and Edward Dean Stith against Ballard Hudson, Emma Bell Farmer and the First National Bank of Atlanta as trustees under the will of Charles Moseley Roan, deceased. The defendant Hudson is the sole appellee.
The original complaint alleged in essence the following: that the plaintiffs-appellants were the owners of a certain described tract of land situated in Campbell, now Fulton County; that they acquired title to this property as sole heirs at law of their father, E. D. Stith, who died owning a one-half undivided interest therein; and also by virtue of a properly recorded warranty deed dated February 20, 1957, from Mrs. Birdelle Stith Jackson, the owner of the other one-half interest in said property.
It was further alleged that on May 5, 1939, the Tax Collector of Fulton County purportedly sold the one-half undivided interest of Mrs. Jackson in the property to Hudson and Roan for a consideration of $40.25, which was the amount of tax due and costs; that at that time the land was worth $4,000 to $5,000 and was levied upon to satisfy a tax execution for the year 1932 in the amount of $16.45; that the sum for which the land was sold was so inadequate and below the value of the land, which was capable of subdivision and sale in smaller parcels, and the levy on which the sale was based was so excessive as to render the pretended tax sale void; and that by reason of the tax deed upon the records of Fulton County the appellants' title to said property was impaired.
The complaint further recited that the appellee Hudson was the Hudson referred to in the tax deed; that the First National Bank of Atlanta was the trustee under the will and legal representative of the person referred to as Roan in said deed; that Emma Bell Roan Farmer was the beneficiary under Roan's will; that each of them claimed an interest in the tax deed; that the appellants had tendered to each of the defendants the amount paid for the tax deed together with 10% penalty for each year, as required by § 92-8301 et seq. of the 1933 Annotated Code of Georgia; that they now tendered and paid such sum into court for the purpose of redeeming said property as required by law; and that the defendants had not foreclosed the right of redemption and they were entitled as a matter of law to redeem the property.
The prayers were that the tax deed be canceled as a cloud upon their title and for further proper relief.
The appellee Hudson filed an answer in which he denied the essential allegations and set up the defense, among others not necessary to recite here, that the right to redeem the property described in the complaint was terminated by operation of law in Code Ann. §§ 92-8315 and 92-8316 (Ga.L.1949, pp. 1132-1134); which superceded the redemption procedures relied upon by the appellants.
The appellants moved to strike this defense upon the ground that the Act of 1949 violated Art. I, Sec. X of the United States Constitution (Code § 1-134) and Art. I. Sec. III, Par. II of the Georgia Constitution (Code Ann. § 2-302) in that it constituted a bill of attainder, an ex post facto law, retroactive law, or law impairing the obligation of contracts as retroactive legislation depriving the appellants and their predecessors in title of vested interests in the property.
The trial court overruled the motion to strike and certified the ruling for immediate review.
This court affirmed, holding that Stith v. Hudson, 226 Ga. 364, 365, 174 S.E.2d 892.
Upon the return of the case to the superior court the appellants amended their complaint, asserting in material part that they were the owners of certain described property in Campbell, now Fulton, County, which was somewhat less than that described in the original complaint; that they had acquired title essentially as alleged in the original complaint; that on April 4, 1939, the Tax Collector of Fulton County issued a fi. fa. against 'Mrs. Birdell Jackson' for 1932 state and county taxes and on May 2, 1939, sold certain described land to Hudson and Roan as previously set forth in the original complaint.
The amended complaint further alleged that on September 12, 1972, the First National Bank of Atlanta, as trustee under the will of Charles Moseley Roan, had executed a deed to the appellee Hudson purporting to convey 'the undivided one-half (1/2) interest owned by Charles Moseley Roan at the time of his death' in the property described in the complaint.
It also contained three separate counts setting forth different claims of the appellants to the property in question.
Count 1 asserted that the appellants had acquired the rights of Mrs. Birdell Stith Jackson to redeem the property in question at any time within 12 months from the date of sale, and at any time thereafter until the right to redeem was foreclosed in the manner prescribed by law; that the defendants had never foreclosed the right of redemption and the appellants are entitled by law to redeem it; that they had attempted to do so and had made tender as described in the original complaint; and that 'Section 2(b) of Section 1 of the Act approved February 25, 1949 (Ga.L.1949, p. 1132) which appears as Section 92-8316 of the Georgia Code Ann., which purports to bar the right to redeem said property, is illegal void and unconstitutional' for the reasons recited in the motion to strike. The prayers of this count were that they be permitted to redeem the property and that the defendants be required to make a quitclaim deed to them in accordance with law.
Count 2 is primarily concerned with the appellants' title to the land as successors in interest to Mrs. Jackson. In addition to alleging that the levy was so excessive and the sale price so inadequate as to render the tax sale void, it was urged that the sale was also void because title to the property for the year 1932 was in Fulton County and no taxes were due. The tax deed was therefore claimed to be a cloud on their title as successors to Mrs. Jackson and an impairment thereto, and it was prayed that it be declared a nullity, canceled and that the appellants recover the interest in the described property of Mrs. Jackson.
Count 3 sets forth in substance the same allegations and prayers as Count 2. It further contends that although Mrs. Jackson was only the owner of an undivided one-half interest in the property in question, the tax deed on its face purports to convey the entire fee in the property, and prays that the appellants recover from the defendants the interest of Mr. and Mrs. E. D. Stith in the described land.
Thereupon the appellee Hudson filed responsive pleadings and moved to dismiss the entire proceeding because the complaint, as amended, failed to state a claim upon which relief could be granted. This motion to dismiss was amended by adding as additional grounds that the trial court lacked jurisdiction of the subject matter of the amended complaint for the following reasons: 1) That the appellants in their amendment struck all the paragraphs of their original complaint and the prayers for relief in their entirely and therefore 'there was nothing left pending in said matter on which to file an amendment; 2) that since the appellants were seeking to have the tax deed to Hudson and Roan canceled and set aside, the tax commissioner as grantor was an indispensable party whom they had failed to join; and 3) that the entire complaint, with all counts thereto amended, was barred by the statute of limitation in that no action was filed within a period of seven years from the execution of the deed sought to be canceled and set aside.'
On June 27, 1973, the trial court entered the following order: 'The within and foregoing Motion to Dismiss coming on to be heard before me, and after hearing argument of counsel, it is hereby considered ordered and adjudged that said Motion to Dismiss be and the same is hereby sustained.'
The appeal is from this order.
Since the order appealed from does not recite upon which ground of the amended motion to dismiss it was sustained, it will therefore be necessary to consider the sufficiency of each.
1. In our view the complaint was not dismissible upon the ground that it failed to state a claim upon which relief might be granted.
In this connection it is of primary importance that under the Civil Practice Act 'when the sufficiency of the complaint is questioned by a motion to dismiss for failure to state a claim for which relief may be granted, 'the new rules require that it be construed in the light...
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