Johnson v. Christie

Warner, Chief Justice. Johnson, as the transferee of certain wild land fi. fas., brought a rule against the sheriff of Terrell county, requiring him to show cause why he should ' not pay over to him the money in his hands arising from the sale of certain described wild lands for taxes. Upon the hearing of the rule the court decided that the transfer of th o fi.fas. to the plaintiff in the rule was made without authority of law, and was therefore void, and discharged the rule, whereupon the plaintiff excepted. It appears from the evidence in the record that the tax ii. fas. were issued by W. L. Goldsmith, comptroller-gen [120] eral of the state, against certain described wild lots of land for the taxes due thereon, and that the tax due the state on said wild lands was paid by said Johnson to the comptroller-general, who thereupon transferred said fi.fas. to him after the tax due to the state had been paid, and the question is whether the comptroller-gener’al had any lawful authority to do so. The general rule is that when an officer performs an official act it must be affirmatively shown that he had the lawful authority to do that act, and this is especially so in regard to the execution of the tax laws of the state. After the most careful examination, we have been unable to find any law which authorized the comptroller-general to transfer tax fi. fas. issued against wild lands, after the tax due thereon to the state has been paid to him by any person, and therefore we affirm the judgment of the court below discharging the rule against the sheriff. Let the judgment of the court below be affirmed.