Harris Orchard Co. v. Tharpe

Gilbert, J. The exception is to a judgment refusing to enjoin a tax sale. The land on which a fi. fa. for State and county taxes was levied, and which was being advertised for sale thereunder, was bought by the petitioner in January, 1931, at a sale under a fi. fa. for 1929 taxes. At the time of the sale there was also an outstanding lien on the property purchased for State and county taxes for the year 1930. Both tax fi. fas., that is, for 1929 and 1930, were issued in personam. Both were general executions, and not special against the land for taxes on it alone by name. 1. “No replevin shall lie, nor any judicial interference be had, in any levy or distress for taxes under the provisions of this Code, but the party injured shall be left to his proper remedy in any court of law having jurisdiction.” Civil Code (1910), § 1163. 2. The Code section just quoted states the general rule, to which there are some exceptions: (a) An unconstitutional exaction, because what is then called a tax is no tax. Green v. Hutchinson, 128 Ga. 379 (57 S. E. 353). (b) Where the law does not impose the tax or authorize-the execution, fbr the same reason. Hewin v. Atlanta, 121 Ga. 723 (49 S. E. 765, 67 L. R. A. 795, 2 Ann. Cas. 296). (e) Where the defendants did not occupy the official positions alleged in the execution. Mayo v. Renfroe, 66 Ga. 408. (d) Where an execution issued for taxes which had been properly returned and taxes paid. Nalley v. McManus, 135 Ga. 713 (70 S. E. 255). There are doubtless other exceptions. 3. “When property is levied on under a tax fi. fa issued either by the comptroller-general or tax-collector, it may be claimed by a third person [548] and tried in tlie same manner as otlier claims are, except that the claimant shall give bond and security for the eventual condemnation money; and if found subject, such claimant and his sureties shall be in all respects liable as on an appeal bond.” Civil Code (1910), § 1159; Campbell v. Drainage Commissioners, 156 Ga. 64 (118 S. E. 720), and cit.; Herrington v. Ashford, 157 Ga. 810 (122 S. E. 197). No. 9633. July 12, 1933. Rehearing denied September 14, 1933. W. H. Harris, for plaintiff. Loms L. Brown Jr., for defendant. 4. “A claimant may set up invalidity of the fi. fa., on the trial of the claim case. Wheeler v. Martin, 145 Ga. 164 (88 S. E. 951).” Campbell v. Drainage Commissioners, supra. The claimant may also contest the validity of the levy, on the contention that it is an arbitrary and unreasonable division. 5. “The plaintiff had an adequate remedy at law; and having such, whether or not the fi. fa. was void, injunction was not an appropriate remedy. Douglas v. Jenkins, 146 Ga. 341 (91 S. E. 49, Ann. Cas. 1918C, 322) ; Racine Iron Co. v. McCommons, 111 Ga. 536 (36 S. E. 866, 51 L. R. A. 134).” Campbell v. Drainage Commissioners, supra.