Southern Banking & Trust Co. v. Wilcox Lumber Co.

Lamar, J. (after stating the foregoing facts). In trespass to try title, the validity of an essential link in plaintiff’s chain depended upon the question as to whether the comptroller-general, under the act of 1874 (Acts 1874, p. 105), had the right to sell the property as wild land. There wás evidence that there had been some improvements placed on the property prior to 1875. The plaintiff insisted that this work had been done by a mere trespasser, and that in legal effect the land remained wild, and could be sold as such by the comptroller. He excepts to the contrary ruling. Under the act the comptroller was authorized only to issue tax fi. fas. against unimproved or wild lands. If the property was in fact improved, he had no right to issue execution against it, and a sale thereunder would convey no title. Hutchins v. Tenant, 73 Ga. 96. In that case about six acres had been cleared and fenced in 1874. The fi. fa. was for taxes alleged to be due on a land lot for 1874 and 1875, and there, as here, an effort was made to show that as the person in possession was a trespasser, his wrongful act could not make domestic the wild land. The court, however, refused to permit such testimony, holding that the sale was void and conveyed no title to the purchaser. The decision is in accord with the ruling in other States under statutes in reference to the sale of unoccupied or unseated lands. In Biddle v. Noble, 68 Pa. St. 289, it was held that an entry upon an unseated tract of land by any one, whether as an intruder or under the title of the owner, either for purchase or residence or for cultivation, makes the tract seated. The cultivation of several acres fixes the denomination of the whole, and charges the person of the cultivator so as to render a sale for taxes illegal. And again in Stoetzel v. Jackson, 105 Pa. St. 562, 567, it was held that “land may be seated as well by an intruder as by an owner, and whether it is to be taxed as seated or unseated depends altogether on the appearance it presents to the eye of the assessor. Where there appears to be such a permanent improvement as indicates a personal responsibility for taxes, the land Should be returned and taxed as seated. It is not the business of the assessor to inquire how the improver holds the property, whether by title perfect or imperfect, or by no title at all. For [521] the question is but how the taxes shall be collected; if seated, then from some person; but if unseated, from the land itself.” Judgment affirmed. All the Justices concur, except Simmons, G. J., absent.