Herrington v. Old South Investment Co.

Duckworth, Chief Justice. In this action to redeem property-sold under a tax execution it is shown that Royal E. McKenney and J. W. Fitts were the purchasers at the tax sale; that they conveyed the lands to Old South Investment Co., who in turn conveyed by deed to secure debt the same lands to Atlanta Federal Saving & Loan Assn., Royal E. McKenney and J. W. Fitts. All these parties were named defendants in this action by the alleged owner before the tax sale, Paul G. Herrington. It is alleged that tender in the form of two checks was made to Old South Investment Co., before suit, and the checks were never returned or cashed. Demurrers of all the defendants were sustained, and plaintiff’s motion for summary judgment was denied. The appeal is from these rulings. Held: By the terms of Code Ann. § 92-8313 (Ga. L. 1937, pp. 491, 495), a prerequisite to redemption in such a case is that the amounts required for redemption must be paid to the purchaser, or his heirs, successors, or assigns in lawful money of the United States of America. The intent and purpose of this payment is to fully compensate the owner for what he paid plus penalty. This purpose is defeated if payment is made to just anyone in the chain, for the owner at the time is alone entitled thereto. In this case the grantees in the security deed are the last holders and would be deprived of their security if their grantor, and not they, received such payments. Accordingly, proper tender in this case would have been to the holders under the security deed, and failure to pay or tender to them the amount the law requires for redemption is a bar to the prosecution of this case. Durham v. Crawford, 196 Ga. 381 (26 SE2d 778). The court did not err in dismissing the petition as to all defendants. Judgment affirmed. All the Justices concur, except Mobley, J., disqualified. Mitchell, Clarke, Pate & Anderson, T. H. Clarke, Stephens Mitchell, J. Corbett Peek, Jr., Paul Anderson, for appellees.