Wilson v. Boyd

• Decision Date: 02 December 1889
• Citation: 84 Ga. 34,10 S.E. 499
• Parties: Wilson v. Boyd.
• Court: Georgia Supreme Court

10 S.E. 499

(84 Ga. 34)

Wilson

v.Boyd.

Supreme Court of Georgia.

Dec. 2, 1889.

Taxation—Lien—Execution Sale.

1. A sale of land by the sheriff in November, under a general ft. fa., does not divest the lien of the state and county for the year's taxes of the defendant in fi fa.

2. It is not a fraud for the sheriff to sell for taxes, upon due levy and return to him by a constable, the same land which he has previously sold under a general ft. fa. against the same defendant; nor is it a fraud for any one to purchase at the tax-sale, though having full notice of the prior sale.

(Syllabus by the Court.)

Error from superior court, Lumpkin county; Wellborn, Judge.

Price & Charters, for plaintiff in error. Wier Boyd, for defendant in error.

Bleckley, C. J. By virtue of an execution from Lumpkin superior court in favor of Sears against Parker, the undivided one-fourth part of a certain lot of land was sold by the sheriff in November, 1886, and Boyd became the purchaser, at the price of $100, and the sheriff made to him a deed accordingly. Afterwards, in February, 1887, a tax 8. fa. against Parker for $93.61, his state and county taxes of the year 18S6, was levied by a constable upon the same undivided fourth of the same lot, together with other realty, all of which was pointed out by Parker, and seized as his property. This levy having been returned to the sheriff by the constable, the property embraced in it was sold by the sheriff on the first Tuesday in April, 1887, each parcel being sold separately, and the whole bringing less than the amount of the tax 8. fa. Boyd was present, and gave notice that he claimed, under his previous purchase, and the deed made in pursuance thereof, the undivided fourth embraced therein. This notice was given in the presence and hearing of Wilson, who nevertheless became the purchaser of the same undivided fourth at the tax-sale, the price paid being $1.50, and took a deed from the sheriff accordingly. At the time of this sale to Wilson, Parker had, and still has, sufficient other property in the county to satisfy the tax fi, fa. Other realty was in fact seized and sold under the 8. fa. subsequently, producing a fund sufficient to pay off the balance due upon it, and leaving a surplus of $14.51. On the foregoing facts, Boyd filed his bill in September, 18S8, against the sheriff and Wilson, alleging that at the time of the tax-sale they both well knew that the title had passed out of Parker into him, (Boyd,) and that all liens had been divested by virtue of the prior sale to him. He prayed that the deed from the sheriff to Wilson be canceled and set aside as a cloud upon his title; and the judge, to whom the case was submitted without a jury, decreed at the hearing that said deed be canceled and annulled, to winch decree...