Pursley v. Manley

Hines, J. G-. T. Pursley brought complaint against J. P. Manley for the possession of a lot of land containing 55.12 acres, known as tract number 19 of the Spalding County drainage district number 1. Before introducing evidence the parties entered into an agreement to the effect that both plaintiff and defendant claimed title under a common grantor, to wit, Miss Emma Manley, who died in Spalding County on December 27, 1921. J. P. Manley was appointed executor of her will. The plaintiff tendered in evidence an execution dated April 8, 1922, issued by the tax-collector of Spalding County, directed to any lawful officer to execute and return, and commanding such officer that by levy and sale of the lands and tenements of Miss Emma Manley, known as tract number 19 in Spalding County drainage district number 1, he cause to be made the sum of $219.45, the amount of drainage tax for the year 1921, with fifty cents for said fi. fa., and make return to said tax-collector according to law. The levy entry upon said fi. fa., signed by W. T. Freeman, sheriff, dated April 20, 1922, was as follows: “I have [810] this day levied the within fi. fa. on the following described property, to wit, 55.12 acres of land known as tract number 19 in the Spalding County drainage district number 1, levied on as the property of Miss Emma Manley by virtue of a tax fi. fa. in favor of T. R. Nutt, tax-collector, against Miss Emma Manley, issued from the tax-collector’s office of Spalding County.” The plaintiff also tendered in' evidence a deed executed by W. T. Freeman, sheriff, which recited that on April 20, 1922, said sheriff levied upon the tract of land described as in the entry of levy, and afterwards said sheriff, on the first Tuesday in June, 1922, exposed for sale the property so levied on before the court-house door in Spalding County between the legal hours of sale, after having advertised the same according to law for the space of four weeks immediately preceding the sale, and that G. T. Pursley was the highest bidder, and the tract of land was knocked off to him for the sum of $5. The land conveyed is described as all “that tract or parcel of land situate, lying, and being in Spalding County, Georgia, -and being 55.12 acres of bottom land known as tract number 19 in Spalding County drainage district number 1.” The defendant objected to the introduction of said fi. fa., levy, and deed, on the ground that it appeared from the agreed statement of facts that Miss Emma Manley was dead on the date said fi. fa. was issued and levied and at the time said land was sold by the sheriff, and that the fi. fa., levy, and deed were therefore illegal and void. The court sustained the objection. The plaintiff then announced closed, and the court granted a nonsuit and dismissed the case. Error is assigned upon these rulings. After the classification of the land in a drainage district and the ratio of assessment of the different classes made thereon have been confirmed by the court, the drainage commissioners are required to prepare an assessment roll, giving a description of all the land in such drainage district, the names of the owners so' far as can be ascertained from the public records, “and the amount of assessment against each of the several tracts of land.” This assessment shall be made “against the several tracts of land according to the benefit received, as shown by the classification and ratio of assessment made by the viewers and confirmed by the board of drainage commissioners. This drainage tax roll shall be made in duplicate, 'signed by the chairman and secretary, and one copy filed with the [811] drainage record and the other delivered to the sheriff or other county tax-collector. There shall be appended an order to collect ' said assessments, and the same shall have the force and effect of a judgment as in the case of State and county taxes. It will thus be seen that the costs of draining land in a drainage district are assessed directly against the several tracts of land embraced in the district, and not against the landowners. The order of the board of drainage commissioners, directing the collection of said assessments, has the force and effect of a judgment as in the case of State and county taxes. Said assessments constitute the first and paramount lien, second only to State and county taxes, upon the lands assessed, and shall be collected in the same manner by the same officers as State and county taxes are collected. Acts 1911, pp. 108, 127, 129; 8 Park’s Code Supp. 1922, §§ 439(ee), 439(h). Was the execution issued against this land, to collect the drainage assessment due in 1921, void because it was issued after the death of the owner of this land, it being against the land assessed for the tax, and not against the owner of the land? It is insisted that under the Civil Code, § 1018, “Taxes are to be charged against the owner of property if known, and against the specific property itself if the owner is not knownand that this section is applicable to assessments for drainage taxes. This section has nothing to do with the assessment of drainage taxes. The method of assessing land for drainage taxes is specifically provided for in the drainage act. The method of assessment and the method of collection of a drainage tax are- two separate and distinct things. The drainage act provides the method of assessing property for drainage taxation. Section 1018 provides the method for assessing property for ordinary county and State taxes. The drainage act does provide, as we have shown, that drainage taxes shall be collected in the same manner and by the same officers as State and county taxes are collected. By the act of 1918 it is provided that “it shall be the duty of the tax-collector to collect such assessments in the same manner and at the same time as he collects State and county taxes, and issue his receipt therefor,” and that the tax-collector shall “issue his execution to enforce collection of the same, which shall proceed' as ordinary executions for State and county taxes.” The provisions of the drainage act of 1911 and that of 1918 refer, not to the assessment of property for drainage taxes, but for the issuing of execu [812] tions therefor, and provide the method of their enforcement. Conceding the general rule to be, in the absence of statute, “that taxes are to be charged upon the owners of property” (Burns v. Lewis, 86 Ga. 591, 602, 13 S. E. 123; Miller v. Brooks, 120 Ga. 232, 47 S. E. 646; Civil Code, § 1018), and that this general rule is applicable to assessments for drainage taxes, and that this drainage tax is in effect charged to the owner of this land, the assessment was against described land as the property of Emma Manley. But the real question in this case is, where an assessment for drainage tax is properly made against specific land of a named owner, and while the owner is in life, and the owner afterwards dies, can the tax-collector issue an execution against such land as the property of such owner and have the same levied and the land sold to pay such tax? We have seen that the proper order upon the drainage tax roll has “the force and effect of a judgment.” On the death of a defendant after final judgment, when no execution has been issued previously to such death, execution may issue as though such death had not taken place. Civil Code, § 5616. “At common law, if a party died after judgment, but before the issuing of execution, it was necessary to issue a scire facias to make the heir or legal representative of such decedent a party to the judgment; but since the passage of the judiciary act of 1799, which makes the judgment a lien on all the property of the defendant from the time of its rendition, the reason of the rule, and consequently the rule itself, has ceased to exist in this State.” Smith v. Lockett, 73 Ga. 104. So where a plaintiff dies after judgment has been entered in his favor and before the issuance of an execution thereon, execution may be issued in his name. Mims v. McKenzie, 22 Ga. App. 571 (96 S. E. 441). Where a judgment has been obtained and execution has issued in the lifetime of the defendant, his subsequent death will not arrest the collection of the debt by a levy and sale of the intestate’s property. This was the rule at common law. Brooks v. Rooney, 11 Ga. 423, 429 (56 Am. D. 430); Hudgins v. McLain, 116 Ga. 273. Since the adoption of the Code, executions issued for State and county taxes stand upon the same footing, as to levy and sale of property, ah executions issued upon judgments at law. Byars v. Curry, 75 Ga. 515. By parity of reasoning, this principle is applicable in the issuing of executions to collect assessments of a drainage tax. [813] We have seen that an assessment for a drainage tax constitutes a first and paramount lien, second only to State and county taxes, upon the lands assessed. So we are of the opinion that where such an assessment is made during the life of the owner of the land, the tax-collector can issue an execution against the land as the property of the owner for the purpose of collecting such tax; and that a sale of land under the levy of such an execution, when properly made, will convey to the purchaser at sheriff’s sale a good title. Of course, a sale to satisfy an execution issued to collect a drainage tax must be conducted under the same rules and proceed in the same manner as sales to satisfy State and county taxes. McVey v. McWilliams, 157 Ga. 220, 226 (121 S. E. 641). There is nothing to the contrary of what is said above, in Miller v. Broolcs, supra, where it was held that “An execution for municipal taxes, not describing any particular property, but simply directing the seizure of the goods and chattels, lands and tenements, of ‘the estate of J. Miller,’ is void, and a purchaser at a sale under the levy of such an execution obtains no title.” In the instant case, the execution commanded the officer to levy the drainage tax execution upon described land, the same being the land assessed for the payment of the drainage tax. In Ayer v. Chapman, 146 Ga. 608 (91 S. E. 548), the tax fi. fas. involved in that ease were against “Est. of Mrs. 0. Oliver,” and against “Mrs. 0. Oliver,” after her death. Besides, the fi. fas. issued for taxes which accrued many years after her death. The attack on the fi. fas. was based upon the ground that the tax fi. fas. issued against the estate of Olivia Oliver instead of against the property itself, or against .the owner. Besides, the decision in that case was not by a full bench. It follows from what has been said that the execution which issued to collect this drainage assessment, and a sale duly made in pursuance of a levy thereon of the land assessed for the drainage tax, were not void; and the purchaser at such sale acquired a good title to the land assessed for such tax, and so levied on and sold. So the court erred in rejecting this execution, the levy thereon, and the sheriff’s deed made in pursuance of such sale thereunder. Judgment reversed. All the Justices concur, except Bussell, C. J., and SUl, J., who dissent.