Durden v. Phillips

Hines, J. (After stating the foregoing facts.) Did the court below err in admitting in evidence against petitioner the deed from the trustee in bankruptcy of G. E. and E. H. — 693 — Phillips, to the defendants, to the land in dispute, over her objection that the same was not accompanied by the order of the bankruptcy court authorizing the trustee to sell this land ? A deed purporting on its face to have been made by'the guardian of a minor, under authority of a decree of the superior court, is inadmissible in evidence without the production of the decree or a certified copy of it. McCamy v. Higdon, 50 Ga. 629. Where one claims title to land under an administrator’s deed, pursuant to a sale made under an order from the ordinary, he must show the order granting the administrator leave to sell the land. Clements v. Henderson, 4 Ga. 148 (48 Am. D. 216); Yahoola River &c. Co. v. Irby, 40 Ga. 479 (3); Waller v. Hogan, 114 Ga. 383 (40 S. E. 254); Brown v. Madden, 141 Ga. 419 (2) (81 S. E. 196); Hilton &c. Lumber Co. v. Alwood, 141 Ga. 653 (3) (81 S. E. 1119); Pendergrass v. Hardman, 157 Ga. 579 (121 S. E. 808). The mere recital in a deed that an order to sell was granted is not sufficient. Waller v. Hogan and Brown v. Madden, supra. By parity of reasoning, the deed of a trustee in bankruptcy, made under an order of the court of bankruptcy, is inadmissible as a muniment of title, unless it is accompanied by the order. So a deed from assignees in bankruptcy has been held not evidence of title, unless there is introduced enough of the record of the bankruptcy court to show authority for its execution, and that the court had jurisdiction of the person whose property is directed to be conveyed, and of the subject matter. Despard v. Pearcy, 65 W. Va. 146 (63 S. E. 871); Brown v. White, 153 Ky. 452 (136 S. W. 96); 7 C. J. 238, § 375, 10. So we are of the opinion that the trial judge erred in admitting this trustee’s deed over the objection of petitioner that it was inadmissible without an order of the bankruptcy court authorizing the trustee to make the sale. The question involved upon the hearing of the application for temporary injunction being one of title, and the right to the injunction not depending upon the mala fides of the defendants in entering upon the lands in dispute, such deed was not admissible upon the issue of mala fides vel non, title by prescription being in no way involved. It is insisted by counsel for the defendants that the trial judge did right in refusing an injunction, upon the ground that the petitioner claimed title to the land in dispute under tax sales which were void because the levies of the tax fi. fas. under which — 694 — the sales were made were excessive. E. H. Phillips owned a life-estate in a tract of land containing 350 acres, more or less, and held the remainder in trust for such of his children as might be living at the time of his death. A tax fi. fa. issued against him for his taxes for the year 1922, which amounted to $161.83, with interest and costs. This fi. fa. was levied on 100 acres of the above land, which was advertised and sold on March 6, 1923, and was bid in by Treutlen County for the sum of $187.31. On that day the sheriff executed to the county a deed to said tract of 100 acres. A tax fi. fa. issued against said Phillips for $113.61, for State, county, and school taxes for the year 1924, with interest from date, and costs. This tax fi. fa. was levied upon 50 acres of the above tract of 350 acres. The dwelling house was located upon these 50 acres. This tract of 50 acres was advertised and sold on May 5, 1925, when it was bid in by the county for the sum of $138.21. The sheriff on said date executed to the county a deed to this tract of 50 acres. A tax fi. fa. issued against Phillips for his State, county, and school taxes for the year 1925, amounting to'$115.81, with interest and costs. This fi. fa. was levied upon 50 acres of the above tract of 350 acres. This tract of 50 acres was advertised and sold under said levy on May 4, 1926, when it was bid in by the county for the sum of $140.59; and the sheriff executed to the county a deed to the same. On the hearing of the application for injunction, C. P. Phillips, one of the defendants, testified that these tracts of land were worth, when sold for taxes, $25 per acre, that they were susceptible of division, and a less acreage could have been carved out without damage to the remainder. There is in the record no other evidence relating to the value of these tracts of land, except the prices at which they sold at the tax sales. There is no evidence relating to the value of the life-estate of E. H. Phillips in these three tracts of land, except the price his life-estate in the whole tract brought at the trustee’s sale. It appears that E. H. Phillips had reached old' age. His life-estate in the tract of land from which the tracts sold for his taxes were carved was sold on February 16, 1926, by his trustee in bankruptcy, as containing 250 acres, to H. L., J. R., and C. P. Phillips, for the sum of $500, or at the rate of $2 per acre. The tax executions were issued against E. H. Phillips in personam. Life-tenants, and those who own and enjoy the property, are charge — 695 — able with the tax thereon. Civil Code, § 1018; Austell v. Swann, 74 Ga. 278; Justice v. Parnin, 130 Ga. 869 (61 S. E. 1044); Wright v. Central &c. Ry. Co., 146 Ga. 406 (91 S. E. 471). Whether the levies of these tax executions were excessive or not depends upon the value of the life-estate of Phillips in the tracts levied on and sold under the tax executions, although the levies were upon the entire interest in these lands. The facts appearing in the record, other than the price of the life-estate in the entire tract, do not show the value of his life-estate in these tracts, nor do they furnish the necessary data from which such value can be ascertained. In these circumstances it can not be held that the tax sales were void because the levies were excessive. Besides, petitioner does not rely upon these tax sales alone to establish her title to the premises in dispute. She relies upon a deed from E. H. Phillips and others to her to these premises; and as both petitioner and the defendants claim under a common grantor, the burden rests upon the defendants of showing that they acquired from E. H. Phillips a title superior to that acquired by petitioner from him. The defendants recognized that this burden rested upon them, and undertook to carry it by showing that they had acquired title to these premises from the trustee in bankruptcy of Phillips, and that 'this title was superior to the title acquired by petitioner from him. But as they failed to show any authority for the sale by the trustee, they failed to show a title superior to that of petitioner. Moreover, the county acquired title to two of the tracts sold at tax sales, one of 100 acres, and the other of 50 acres, prior to the title acquired by the defendants under the trustee’s deed. If the sales of these two tracts are not void because the levies were excessive, and they do not so appear from the facts appearing in the present record, then the title of the county to these two tracts is superior to that of the defendants. The title of the county to the last tract sold for taxes is junior to the title acquired by the defendants under the trustee’s sale; but the county acquired title under a sale for taxes, the lien of which had accrued prior to the trustee’s sale. “A sale of property under any other process does not divest the lien of the State for taxes.” Civil Code, § 1141; Planters Warehouse Co. v. Simpson, 164 Ga. 190, 195 (138 S. E. 55). So the sale of land by the assignee of a bankrupt does not divest the lien of the State thereon for taxes, although sold by the assignee — 696 — free of incumbrance. Stokes v. State, 46 Ga. 412 (12 Am. R. 588). Upon the same principle, a sale by a trustee in bankruptcy of the land of a bankrupt, under order of the bankruptcy court, will not divest the lien of the State and county for taxes, which had accrued on the land prior to such sale. It follows that the county acquired title to this last tract, which is superior to the title acquired thereto by the defendants from the trustee in bankruptcy, it not appearing from the facts in the record that this last sale was void either because the levy was excessive, or for any other reason. It is further urged by counsel for the defendants that the county acquired no title to the land sold at these tax sales, for the reason that the deeds to the county under these tax sales, and the deed from the county to petitioner, are void for want of sufficient description, and did not pass any title to petitioner. The sheriff’s deed to the county, under the first of these tax sales, describes the land conveyed as follows: “All that tract or parcel of land situated, lying, and being in the 1764th dist. G. M. of Treutlen County, Ga., bounded north and south by lands of E. H. Phillips, Agt.; east by lands of Carlton Phillips; west by lands of C. P. Phillips; containing 100 acres.” The sheriff’s deed to the county, under the second of these tax sales, describes the land thereby conveyed as follows: “All that certain tract or parcel of land situated, lying, and being in 1764th dist. G. M. of Treutlen County, Georgia, bounded as follows : south by public road, west by public road, north and east by other lands of E. H. Phillips, Agt., being land where dwelling now stands; containing 50 acres.” The sheriff’s deed to the county, under the third of said tax sales, describes the land thereby conveyed as follows: “All that tract or parcel of land situate, lying, and being in the 1764th dist. G. M. Treutlen County, Georgia, bounded as follows: north and east by lands of C. P. Phillips; south and west by other lands of E. H. Phillips, Agt.; containing 50 acres.” The deed from the county to petitioner describes the land thereby conveyed as follows: “The following described lands situated in the 1764th district, G. M., of Treutlen County, Georgia, containing 115 acres, more or less, and bounded as follows: north by«Mrs. Neta Cadwell, east by C. P. Phillips, south by Eenzo Phillips and Mrs. Chas. Ií. Gillis, and west by lands of Mrs. Chas. H. Gillis. Said property is the same which was sold by M. B. Ware & W. L. Thigpen, sheriff [sheriffs ?] of Treutlen County, Georgia, as. — 697 — the property of E. Ii. Phillips, and purchased by Treutlen County at sheriff’s sale; the deed from the sheriff [sheriffs?] to said county being dated 1923-1925 & 1926, and recorded in Treutlen County in Deed Book [books?] No. 11, page 67, No. 8, page 4, No. 11, page 147.” Counsel for the defendants do not in their briefs give any reason why the foregoing deeds are void for lack of sufficient descriptions of the lands therein conveyed; and no facts are alleged which show that they are void for this reason. No facts appear in the record in this case which show that the lands embraced in these deeds can not be located from their descriptions therein given. The contention that these tax deeds are void for lack of sufficient descriptions may be based upon the fact that each of these deeds undertakes to convey a portion of a larger tract containing 350 acres, more or less, and does not fix with sufficient definiteness the boundary between the portion sold and the whole tract, and for this reason is void under the ruling made' in Huntress v. Portwood, 116 Ga. 351 (42 S. E. 513), Luttrell v. Whitehead, 121 Ga. 699 (49 S. E. 691), Crawford v. Verner, 122 Ga. 814 (50 S. E. 958), and Edwards v. Sands, 150 Ga. 11 (102 S. E. 426). Such contention is not well taken. Evidently the levying officer had subdivided the larger tract, and in each case levied upon a definite number of acres. This being so, the case falls within the rulings made in Moody v. Vondereau, 131 Ga. 521 (62 S. E. 821), Hayes v. Dickeson, 148 Ga. 700 (98 S. E. 345); Calhoun v. Ryals, 159 Ga. 35 (124 S. E. 867), and Porter v. Paschal, 159 Ga. 416 (125 S. E. 846). So we are of the opinion that these deeds were not void for lack of sufficient description, under the facts appearing in the record in this ease. No point is raised by the defendants in their pleadings, or by their counsel in their briefs, as to the right of petitioner to the injunctive relief sought, upon the ground that she has an ample remedy at law. However, as the trespass complained of by petitioner is a continuing one, she is entitled to such remedy. Sapp v. Odom, 165 Ga. 437 (141 S. E. 201). As the trial judge erred in admitting the deed of the trustee in bankruptcy, and as petitioner has, under the facts appearing in this record, a title superior to that of the defendants, the trial judge erred in not granting the interlocutory injunction prayed. Judgment reversed. All the Justices concur.