Noles v. Few

Kussell, C. J. Two questions are raised in this case. First, whether two pieces of property, one realty and the other personalty, should be subjected ratably to the lien for taxes against the former owner of such property, W. H. Payne; or whether, because the personal property has been sold under judicial process and brought into the hands of the officer in charge of the tax fi. fa. a sufficient amount to discharge all of the taxes which were a lien both upon Payne’s realty and personalty, the land of Payne, which had previously been sold to D. P. Few, is relieved from the lien and Few thereby is excused from the payment of any tax. The second question is whether the constable was authorized to transfer the tax fi. fa. to Noles, so as to keep the lien alive and enable Noles, as transferee of the fi. fa., to levy upon the land which had been sold by Payne to Few. It seems that on December 16, 1920, Payne, the defaulting taxpayer, sold a tract of land containing sixty-nine acres to D. P. Few, executing to him a warranty deed, One acre of this tract, containing the dwelling-house and other outbuildings, was levied upon by virtue of the fi. fa. issued for Payne’s taxes for the year 1921. This fi. fa. was transferred by N. O. Smith, constable, to J. T. Noles. Few filed an equitable petition to enjoin the sale, and set up as grounds for injunction the fact that the tax had already been paid, and that for that reason the subsequent transfer of the fi. fa. to Noles was void. [475] We start with the proposition insisted upon by the plaintiff in error, that as a general rule the liens against the property of Payne should rest against his property both real and personal, ratably in proportion to the value, and that each should bear its pro rata amount of this tax lien. This is the general doctrine announced in Brooks v. Matledge, 100 Ga. 367 (28 S. E. 119). However, this general rule is modified by an exception as pointed out in Merchants National Bank v. McWilliams, 107 Ga. 532, 535 (33 S. E. 860), which considers § 6029 of the Civil Code and bases itself upon the authority of Craigmiles v. Gamble, 85 Ga. 439 (11 S. E. 838). In the case in 107 Ga. supra, this court held that “when one purchases property from another in good faith for value, a debt against the grantor can not ordinarily be enforced against the property purchased; but when there is an existing lien upon the property purchased, as well as other property of the debtor, the enforcement of the lien should, under plain principles of justice, first be directed to the property which the grantor retains.” “By the provisions of the Civil Code [1895], § 2791, liens for State and county taxes are declared superior to all other liens; taxes due the State being first in rank, and taxes due the county being second. And such taxes are to be charged against the owner of the property. Political Code [1895], § 778. By § 5424 of the Civil Code [1895], which was founded on the ease of Craigmiles v. Gamble [supra], it is provided that where property is subject to a lien and part of it is sold by the debtor, the part remaining in him should be first applied to the payment of the lien; and if the property subject to such lien is sold in several parcels at different times, the parcels should be charged in the inverse order of their alienation — that is to say, that the last parcel sold, if no other property remains in a debtor against whom the tax execution issued, shall be subject to the payment of all of the taxes due at the time of the last sale.” As it appears from the record in this case that the sale of the land by Payne to Few left Payne still in possession of the personal property upon which Noles held a lien as transferee, and which was subject as well to the lien for taxes, and as the sale thereafter under legal process must be treated as a sale by Payne himself; we must hold, under the authorities cited, as well as the ruling in Blalock v. Buchanan, 114 Ga. 564 (40 S. E. 717), [476] that the trial judge properly directed that the acre of land of Few was not subject to the tax fi. fa. which had been transferred to Noles. Judgment affirmed. All the Justices concur.