Decatur County Building & Loan Ass'n v. Thigpen , 173 Ga. 363 ( 1931 )

Atkinson, J.

1. “Liens for taxes due the State or any county thereof, or municipal corporation therein, shall cover the property of taxpayers liable'to tax, from the time fixed by law for valuation of the same in each year until such taxes are paid. . . Such liens for taxes are hereby declared superior to all other liens.” Civil Code (1910), § 3333. “Taxes shall be paid before any other debt, lien, or claim whatsoever, and the property returned or held at the time of giving in, or after, is always subject.” Civil Code (1910), § 1140; Verdery v. Dotterer, 69 Ga. 194 (2). This applies to all property returned or held by a taxpayer that is subject to taxation under the constitution of this State. Phœnix Mutual Life Ins. Co. v. Appling County, 164 Ga. 861 (139 S. E. 674).

2. It has been held by this court: “The lien for State and county taxes attaches to property at the time fixed by law for the valuation of the same in each year. . . Taxes due the State are not only against the owner but against the property also, regardless of judgments, mortgages, sales, transfers, or incumbrances of any kind.” Bibb National Bank v. Colson, 162 Ga. 471 (3) (134 S. E. 85). See also Verdery v. Dotterer, supra; Winn v. Butts, 127 Ga. 385 (3) (56 S. E. 406), applying the principle to unreturned property; Stokes v. State, 46 Ga. 412 (12 Am. R. 588); Wilson v. Boyd, 84 Ga. 34 (10 S. E. 499); Planters Warehouse Co. v. Simpson, 164 Ga. 190 (138 S. E. 55).

3. The public may treat property as belonging either to the maker or the holder of a bond for title, when the latter is in pos-r session; yet, as between the parties, the one receiving the rents or enjoying the use is liable for the tax. Civil Code, § 1018. And it has been held in effect that where an owner of property conveys legal title thereto as security for a debt, retention of the equitable interest is such substantial beneficial ownership as will render him liable for the taxes thereon. Central of Georgia Railway Co. v. Wright, 124 Ga. 630 (53 S. E. 207). See also Penick v. Atkinson, 139 Ga. 649-656 (77 S. E. 1055, 46 L. R. A. (N. S.) 284, Ann. Cas. 1914B, 842).

4. The Civil Code, § 6029, declares: “Where property is subject to a lien and part of it is sold by the debtor, the part remaining in him should be first applied to the payment of the lien. If the property subject to such lien is sold in several parcels at different times, the parcels should be charged in the inverse order of their alienation.” This has been held to be a rule of contribution among purchasers, and does not affect the right of a creditor to levy upon any of the parcels subject to the execution. Hollinshed v. Woodard, 124 Ga. 721 (52 S. E. 815). Much less would it affect the right of the State and county to levy upon any of the parcels for taxes. This does not conflict with the decisions of this court in Merchants National Bank of Rome v. McWilliams, 107 Ga. 532 (33 S. E. 860), Columbia Trust & Realty Co. v. Alston, 163 Ga. 83 (135 S. E. 431), Herrington v. Parham, 166 Ga. 204 (142 S. E. 858), Douglas v. Hannahatchee Ranch Corporation, 168 Ga. 238 (147 S. E. 518), and similar cases where the contest was between purchasers from a common grantor and transferees of tax executions against the common grantor and did not involve the right of a creditor of such common grantor.

5. Under application of the foregoing principles, if an owner of land .conveys it by warranty deed as security for debt, and in the succeeding.year fails to return the land at the time he returns his other property for State and county taxation for that year, and after default in payment execution is issued against him for State and county taxes on the basis of his return of other property, the lien for such taxes will attach not only to the property included in the return but also to the land which he has conveyed as security for debt.

6. If the land conveyed by the security deed is levied upon by the sheriff and sold and conveyed under and by virtue of the tax execution as the property of the defendant, the deed to the purchaser will convey the property subject to be redeemed under the provisions of the Civil Code, §§ 1169-1173, 1179. A different ruling is not required by Norris v. Coley, 100 Ga. 547 (28 S. E. 222), or Cook v. Turner, 167 Ga. 671 (146 S. E. 314), holding in effect that a tax execution must be based on a return of the property or, if unreturned, on an' assessment of its value by the tax-receiver. In this case the execution is against the defendant personally for taxes on property that was duly returned.

7. Equity will not decree the sale for taxes to be void, in a suit by the holder of the security deed, on the grounds (a) that the property was not subject to the tax; (b) that a prior levy of the execution on other property had not been dismissed and the advertised sale thereunder not accounted for; (c) that other property of the defendant had been sold for taxes for the year next preceding the year of the taxes in question; (d)' that the conveyance to petitioner was the first conveyance of several parts of the same property, and the lien should be discharged by the several properties in the inverse order of the dates of the sales.

8. Under application of the foregoing principles, there was no error in sustaining the demurrer and dismissing the action.

Judgment affirmed.

All the Justices concur, except