Stith v. Morris
| Decision Date | 03 April 1978 |
| Docket Number | No. 33068,33068 |
| Court | Georgia Supreme Court |
| Parties | H. Hammond STITH, Jr., Co-Executor, et al. v. Veleta Roan MORRIS, Executrix. |
Parker & Ferguson, John Tye Ferguson, Atlanta, for appellants.
Alston, Miller & Gaines, Oscar N. Persons, Gregory L. Fullerton, Atlanta, for appellee.
This appeal is from the grant of a summary judgment to the appellee. We hold that Code Ann. § 92-8316 is not subject to the attack on its constitutionality and affirm.
The case was commenced in 1969 by Henry Hammond Stith, Sr., and Edward Dean Stith against Ballard Hudson, Emma Bell Roan Farmer, and The First National Bank of Atlanta, as Trustee under the will of Charles Moseley Roan, deceased, and was for the recovery of certain land in Land Lots 36 and 61 of the 7th District of Fulton (formerly Campbell) County.
This property was levied on under a tax execution against Mrs. Byrdelle Jackson and was conveyed by tax deed to Ballard Hudson and Moseley Roan in 1939. Roan died in 1945 and Hudson purchased his interest in the property. Hudson is now dead and his estate is represented by Veleta Roan Morris, executrix under his will. Henry Hammond Stith, Sr., is dead and his estate is represented by his executors. The plaintiffs claim a one-half interest in the property as the heirs of Mr. and Mrs. E. D. Stith, and the other one-half interest under a deed from Mrs. Jackson, made in 1957.
In Count 1 of the amended complaint its was alleged: Under the law of Georgia at the time of the tax sale, Mrs. Jackson had the right to redeem the property within twelve months from the date of sale and at any time thereafter until the right to redeem was foreclosed in the manner prescribed by law. Section 2-B of Section 1 of Ga.L.1949, pp. 1132-1134 (Code Ann. § 92-8316), which purports to bar the right to redeem the property, is unconstitutional in violation of the United States Constitution, Art. I, Sec. 10, Par. I (Code § 1-134), and the Georgia Constitution (now Constitution of 1976, Art. I, Sec. I, Par. VII; Code Ann. § 2-107). It was prayed that the plaintiffs be permitted to redeem the property.
In the second count it was alleged: The property was levied on to satisfy a tax execution for the year 1932. Record title was in Fulton County for that year and there were no taxes due for that year. The levy was excessive, in that the land was worth far more than the amount of the tax execution. In Count 3 it was alleged that while Mrs. Jackson was the owner of only an undivided interest in the property, the tax deed purports to convey the entire fee in the property. In Counts 2 and 3 it was prayed that the tax sale be declared a nullity, and the tax deed be canceled.
The case has been before this court twice. Stith v. Hudson, 226 Ga. 364, 174 S.E.2d 892 (1970), and 231 Ga. 520, 202 S.E.2d 392 (1973). Neither of these cases decided the constitutionality of Code Ann. § 92-8316, which is relied on by the appellee.
1. Ga.L.1937, pp. 491, 492 (Code Ann. § 92-8301) provides that where property is sold for taxes, it may be redeemed within twelve months from the date of the sale, and at any time thereafter until the right to redeem is foreclosed by the giving of the notice prescribed in Code Ann. § 92-8306.
The 1937 law was amended by the 1949 Act (Ga.L.1949, pp. 1132-1134). Code Ann. § 92-8315 provides for the ripening of title by prescription under a tax deed after seven years from the date of the execution of the tax deed. Code Ann. § 92-8316 provides for the ripening of title by prescription under a tax deed that had been executed seven years prior to the passage of the 1949 Act, provided that a person with the right to redeem the property had twelve months from the date of the approval of the Act by the Governor to exercise the right of redemption under the 1937 Act.
It is asserted by the appellants that Code Ann. § 92-8316 violates the State and Federal constitutional prohibitions against the passage of retroactive Acts and Acts impairing the obligations of contracts, in that at the time of the passage of the 1949 Act there was an unlimited right of redemption of property sold at a tax sale, until the right to redeem was foreclosed in the manner prescribed, and Code § 92-8316 removed this unlimited right as to tax deeds made prior to the passage of the Act.
The appellants cite Todd v. Morgan, 215 Ga. 220, 109 S.E.2d 803 (1959), which dealt with the constitutionality of Ga.L.1941, p. 487, as amended, (Code Ann. § 67-1308), providing for the reversion of title under a deed to secure debt, as that law applied to a deed executed prior to its passage. It was held that, as to such prior deed, the Act impaired the contractual right of the holder of the deed to retain the title to the land until the debt was paid.
The appellants also cite Morris v. Interstate Bond Co., 180 Ga. 689, 180 S.E. 819 (1935). That case dealt with a 1931 Act providing that any person having an interest in property returned or assessed with other property for taxation shall be allowed to pay the taxes assessed against any one or more pieces of the property and obtain a release as to such property, which was amended by a 1933 act making it applicable to taxes accruing before its passage. It was held that a transferee of a tax execution, transferred prior to the act, had a contract with the State which was unconstitutionally impaired by the latter act.
The case of Woodruff v. Trust Co. of Ga., 233 Ga. 135, 210 S.E.2d 321 (1974), is cited by the appellants in support of their contention that Code Ann. § 92-8316 is unconstitutionally retroactive as impairing vested rights. The Woodruff case held that a change in the law on trusts, which prohibited the revocation of executory trusts expressly or impliedly made irrevocable, was unconstitutional as applied to trusts in existence at the time of the passage of the act because it impaired vested...
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