Wiley v. Martin

Per Curiam. 1. The acts of J. W. Wiley in purchasing the land and accepting the deed from the plaintiff were admissions of title in plaintiff. So also was the act of J. W. Wiley in executing the security deed to the plaintiff. While the debt was unpaid Wiley was estopped to deny the plaintiff’s title as security; and the debt being overdue, the security deed alone would be sufficient to support the plaintiff’s action of ejectment. The above is application of well-recognized principles of law that have been many times applied in this court. So the judge did not err in directing the verdict against J. W. Wiley. 2. A different case is presented relatively to the defendant “Mrs. J. W. Wiley.” This defendant was not a purchaser from the plaintiff, nor had she received a deed from him, nor had she executed a security deed to him, nor did the uncontradicted evidence show that she in any manner claimed title or possession under him. This defendant and the plaintiff claimed under Rosa Stringer, a common propositus. The question is, which of them had the better claim of title from Rosa Stringer 1 The defendant offered in evidence a tax execution against Rosa Stringer, an entry thereon of a levy on the land in dispute as property of the defendant in fi. fa., and a duly recorded sheriff’s deed to Mrs. J. W. Wiley, made in pursuance of a sale under the said execution and levy. This evidence was excluded on objection that it was “irrelevant and immaterial, no title or possession having been shown in the defendant in fi. fa.” No point was made as to excessiveness of the levy, or that the tax sale was void for any other cause. In view of the registry laws as embodied in the Civil Code, §§ 4198 and 3320, requiring record of deeds to land and declaring the effect of record as it relates to rivalry between deeds conveying the same land from one person to different grantees, the evidence was material as tending to show' that this defendant had a better claim of title from Rosa Stringer than the plaintiff’s claim, which was not supported by a deed or proof of a contract of [382] purchase or payment of the purchase-price in connection with actual possession. The error in rejecting this evidence is sufficient to require the grant of a new trial relatively to this defendant. It is unnecessary to rule upon the insistence that where a person owns land and fails to return it for taxes, and some other person returns it in his own name, and the land is levied upon for the taxes of such other person and sold as his property, such sale would divest the title of the true owner who was delinquent in making his .tax return. But it seems that such insistence is wholly untenable. Where the owner of land fails to return it for taxation, there is provision of law for assessing it for him; and if the owner be not known, there is provision for assessing it as unreturned property (Civil Code, §§ 1105, 1106), and also provision for collecting the taxes on it. Civil Code, §§ 1151, 1167, 6026, 6031, 6032. But where the owner fails to return the land, there is no provision of law whereby his title can be divested by levy and sale as the property of another person under a tax execution issued against such other person. To take land from its owner under such levy and sale, which is not a proceeding in rem or a proceeding in personam against the owner, would deprive him of his property without due process of law. 3. Where relevant, the official tax digest in the office of a receiver of tax returns of a county is admissible as primary evidence for the purpose of showing a return of property for taxation by a property owner; and this being so, such tax digest is admissible without first accounting for the original return filed by the taxpayer. McCrory v. Manes, 47 Ga. 90; Ivey v. Colquitt, 63 Ga. 509; Clark v. Empire Lumber Co., 87 Ga. 742 (13 S. E. 826) ; Southern Railway Co. v. Tharp, 104 Ga. 560 (30 S. E. 795) ; Western & Atlantic Railroad Co. v. Tate, 129 Ga. 526 (4) (59 S. E. 266) ; Churchill v. Jackson, 132 Ga. 666 (7) (64 S. E. 691, 49 L. R. A. (N. S.) 875, Ann. Cas. 1913E, 1203) ; Johnson v. American National Life Insurance Co., 134 Ga. 800 (4) (68 S. E. 731). 4. The uncontradicted evidence in this ease did not demand a finding that Rosa Stringer, the common propositus, had conveyed the land, or that she was not in possession of the land at the time of the tax returns referred to in the next succeeding note. 5. This defendant offered in evidence the tax digests of Early County for the years 1914 to 1922 inclusive, which showed returns for taxation by Rosa Stringer of 33 acres in land lot 376 in the 26th district. The returns did not more specifically describe the land. The land in dispute was described as 26-% acres in the same land lot and district. The evidence was rejected upon the objections urged by the plaintiff, (a) that the evidence was “offered without first accounting for the original return;” (b) that the evidence was “irrelevant and immaterial for the purpose of showing either title or possession” in Rosa Stringer; (c) that it did' not appear that the returns “were made by Rosa Stringer or by any one authorized'by her to make the-same.” In connection with the other evidence in the ease the evidence was relevant. It was insisted that the returns amounted to no more than declarations of Rosa Stringer after she had conveyed her title and yielded her possession; but this contention is not borne out by the record, because, as indicated above, there was an issue of fact as to whether she had conveyed her title and yielded her possession. There was no evidence that [383] the land referred to in the tax digest was the same land as that in dispute. Without such evidence the tax digest was inadmissible. It was erroneous to overrule the motion for new trial, as related to this defendant. Judgment reversed. No. 5341. December 21, 1926. W. L. Stone and O. L. Glessner, for plaintiffs in error. A. H. Gray, contra. All the Justices concur.