Opinion
16575.
MARCH 16, 1949. REHEARING DENIED MARCH 28, 1949.
Complaint for land. Before Judge Kennedy. Butts Superior Court. December 24, 1948.
W. E. Watkins, Benjamin B. Garland, and John R. L. Smith, for plaintiff in error.
Williams Freeman, contra.
1. Under the undisputed evidence, the verdict for the plaintiff was not authorized.
2. A charge to the jury, which had the effect of excluding the defendant's defense of legal title to the property in dispute, was erroneous.
3. Other grounds complaining of excerpts from the charge, and a failure to charge written requests, are without merit.
4. Under the circumstances appearing in the record, there was no error committed in excluding evidence offered without laying a proper foundation for the introduction of such evidence.
No. 16575. MARCH 16, 1949. REHEARING DENIED MARCH 28, 1949.
On March 8, 1943, Mrs. Martha S. Mays instituted an action in ejectment against H. Deraney, seeking to recover several described lots in the City of Jackson, Georgia. She claimed title under a warranty deed from her husband, John B. Mays, executed on November 4, 1926, and recorded on December 4, 1926.
The defendant answered, denying the plaintiff's ownership of the land, and alleging that he held title under a deed executed by the city of Jackson, the purchaser of the land in dispute at a tax sale. The defendant alleged that he and his predecessor in title had been in the open, notorious, uninterrupted, exclusive, and adverse possession of the lands for a period of more than seven years under color of title. By amendment, the defendant also pleaded estoppel, alleging, briefly: that soon after the execution of the deed from Mays to the plaintiff in 1926, creditors of Mays brought an equitable petition against Mays and his wife, seeking to set aside the deed on the ground of fraud; that this suit was pending until 1935, when it terminated; that after this suit was filed Mays paid taxes on the property, and the title to the property was in dispute; that in an effort to collect taxes, the Tax Collector of the City of Jackson notified Mays of back taxes due, and Mays paid taxes on such of the properties as he desired and told the tax collector to sell the balance of the property; that, acting on the instructions of Mays, who was then acting as the agent for his wife, the Chief of Police of Jackson levied on the properties, after giving notice to Mays, who was the agent for his wife; that the property was regularly advertised for sale in a newspaper, and on the day of the sale, as advertised, each tract was regularly sold separately to the highest bidder, the City of Jackson being the purchaser at such sale; that J. B. Mays, acting as agent for his wife, was present at the sale and offered no objections to the sale; that, acting as agent for his wife, Mays directed the city to segregate the properties sold, disclaiming for himself and as agent for his wife any further interest in the properties sold; that after the sale a tax deed was executed to the City of Jackson on January 7, 1936, to a part of the property, and another deed was executed to the remainder of the property, on February 4, 1936; that thereafter the City of Jackson remained in exclusive possession of the properties, collecting the rentals thereon, until the properties were sold to the defendants; and that, following the sale, the plaintiff and her husband remained residents of Jackson, knew that the defendant was collecting rents on the properties, and knew that the defendant was making valuable improvements on the properties, and made no objections thereto for more than seven years after the tax sale.
The defendant also filed a plea of setoff, seeking to recover for valuable improvements detailed in his plea, and costing the total sum of $6273.35.
On the trial, it was admitted that J. B. Mays was the common grantor. The plaintiff offered in evidence a deed from J. B. Mays to the plaintiff, dated November 4, 1926, and recorded December 6, 1926, and rested her case.
The defendant offered in evidence several tax deeds from the Chief of Police of the City of Jackson to the City of Jackson, dated January 7, 1936, and recorded January 10, 1936, describing some of the lots in dispute; also tax deeds to the balance of the land in dispute from the Chief of Police of the City of Jackson to the City of Jackson, dated February 4, 1936, and recorded March 27, 1936. The defendant offered in evidence copies of newspaper advertisements, describing the lands in dispute; also city tax executions against J. B. Mays for the years 1928, 1929, 1930, 1931, 1932, 1933, 1934, 1935, together with the levies on the land in dispute as the lands of J. B. Mays. The defendant introduced in evidence a deed from the City of Jackson to the defendant, dated August 7, 1937, recorded August 20, 1937, and describing the properties in dispute.
The defendant offered evidence as to his possession of the property since the date of his purchase, his collection of rents from the tenants, and as to improvements placed on the property, including the erection of two new houses on a portion of the property. The evidence was in sharp conflict as to the total value of the improvements placed on the property, but it was undisputed that the defendant had built two new houses on a part of the property.
Mrs. Jane Mallet, a witness for the defendant, testified: "I am Clerk and Treasurer of the City of Jackson. In 1936, I was Tax Receiver and Collector. As such, I issued some executions against the property of J. B. Mays. I had a conversation with J. B. Mays prior to the sale of the property. He came in the office and selected the property he was going to buy at the sale. There were several different pieces of property. J. B. Mays demanded that each piece of property stand on its own merits and stand good for the taxes against that individual piece of property. I don't know whether he was living on a piece of property described as `One house and lot situated on Second Street and bounded as follows: on the north by Sallie Berry, on the east by C. C. Cagle, on the south by Second Street, and on the west by Sallie Berry,' but he bought in that piece of property. I was not at the sale. J. B. Mays had previously paid the taxes on this property. He picked out what he wanted to buy, and the other he said he didn't care about it. After the sale of this property, the city collected the rents on it whenever we could get it, from 25 cents a week and up. The property was in bad condition at that time. Just as soon as the property was sold, I started looking after it by collecting what rents I could, which was about all the looking after I could do. Mrs. Martha Mays came in and paid some taxes one time, and that was when she sold Dr. Aiken's place on Third Street, she came in and paid up the back taxes, but that was not in the list of property. She never came in to see about any taxes between 1927 and 1937. J. B. Mays always came in to see about the taxes and the property, and at the time of the sale he picked out what he wanted to buy, and if any taxes were paid he paid them and not Mrs. J. B. Mays. Nobody else ever paid any taxes on this property except J. B. Mays. This property described in this deed from the City of Jackson, by C. T. Thornton, Chief of Police, to Mrs. J. B. Mays, dated the 5th day of December, 1935, was some of the property levied on, and J. B. Mays paid the $25 to the City of Jackson. He was handling that transaction for Mrs. J. B. Mays. There was a controversy on that piece of property, and they were so long doing anything about it until we were going to sell it again, and he came in before the City Council and asked them to let the deed go at that and be made to Mrs. J. B. Mays, and the City Council agreed to it. I am sure Mr. Mays remembers the transaction. Mrs. J. B. Mays, the plaintiff in this case, never did come in to see anything about this property. She never gave in a piece of property, never paid any taxes on it, and never asked what the taxes were or had anything to do with it. I think the $25 was paid in with some other money, but it was not the amount of the taxes. I think the $25 was paid in with the money he paid in at the time of the sale, but the deed was not perfected at that time as there was some question about the amount of taxes. . . J. B. Mays paid the money to the city for what property he bid in. Mrs. J. B. Mays did not offer to pay the city any money and was not present with him. She never did come into my office with her husband on any occasion with reference to any taxes or with reference to any of this property. The City of Jackson made J. B. Mays a deed for the property he bid in and paid for. The chief of police made the City of Jackson a deed for what property the city bought in at the sale. J. B. Mays nor his wife, Mrs. J. B. Mays, never at any time offered to redeem this property. I did not offer to sell the property to them before we sold it to the defendant. I did not offer to sell it to anybody."
Some of the tax fi. fas. introduced in evidence showed various credits by the tax collector for amounts paid on the taxes after 1926 and prior to the time the property was sold at the tax sale.
The defendant offered in evidence a portion of the testimony of the plaintiff in the present case at the trial of the previous litigation instituted by the creditors of J. B. Mays, this testimony being as follows: "John Billy Mays collects the rents because I can't go around and tend to it, and gives me the money he gets. He acts as my agent. As to how I handle this property, John Billy tends to it. He does that for me."
A number of witnesses testified to the same effect as Mollie Brooks, who testified: "I live down in Dark Town, but I don't know just when I moved down there, but it has been a long time. I think I moved down there some time in the thirties. When I first moved down there I paid the rent to Mr. Mays. I stopped paying it to J. B. Mays when Mr. Deraney got the house. Mr. Mays would either come get the rent or send his boy. Mrs. J. B. Mays never at any time came and collected any rent from me. My husband rented the house from Mr. John Berry Mays — I mean Mr. John Billy Mays. He continued to look after it and I continued to pay him the rent until Mr. Deraney got the house, and I live in the house now owned by Mr. Deraney."
The jury returned a verdict for the plaintiff to the premises in dispute, upon payment to the defendant of $1500. The defendant's motion for new trial on the general grounds, and sixteen special grounds added by amendment, was overruled; and to this judgment he excepted.
1. The evidence in this case discloses the following facts with reference to the claimed titles of the respective parties: The plaintiff claims title by virtue of a deed executed by her husband in 1926 and recorded in that year. The defendant claims title by virtue of a tax sale for city taxes, made pursuant to tax executions in personam against J. B. Mays for the years 1928 to 1935, inclusive. Tax deeds, accompanied by the executions, entries of levy, and copies of advertisements were introduced in evidence. These deeds appear to be regular in every respect, with one exception. The executions were in personam against J. B. Mays and not Mrs. Martha S. Mays, who held a warranty deed to the property, duly recorded in the year 1926.
This case, we think, turns upon a consideration of the question of agency.
It appears from the evidence, some of which is quoted in the statement of facts, that shortly after the execution of the deed from Mays to his wife in 1926, creditors of Mays instituted a suit against him and his wife, and others to whom he had executed deeds, seeking to set these deeds aside as being fraudulent. This litigation pended for about ten years, and until a short time prior to the sale of the property to satisfy the city tax executions. The litigation terminated with the deed executed to Mays' wife being upheld, while other deeds executed to other parties were set aside. Prior to 1926, Mays had paid all the city taxes on the property in dispute; and during the pendency of the litigation instituted by the creditors, he made payments of taxes on a part of the property in dispute. In the litigation instituted by the creditors of Mays, his wife, the present plaintiff, swore that Mays was her agent, collected the rents on the properties, and looked after the property for her. The undisputed evidence in the case was to the effect: that from 1926 to the date the property was sold for taxes, Mrs. Mays never paid any taxes on the property and never contacted the taxing officials; that Mays controlled and managed the property, contacted the taxing officials, and made payment of taxes thereon; that shortly prior to the sale, Mays went to the office of the Tax Receiver and Collector of the City of Jackson, selected several pieces of property he intended to buy, said that he didn't care anything about the rest of the property, and demanded that each piece of property stand good for the taxes on that piece of property, and that the property be segregated and sold separately, which was done; that Mays attended the sale, at which there were only two bidders, he and the City of Jackson, Mays bidding on and buying the parcels he wanted, and having deeds to a part of the property bought executed to his wife, and the city bidding on and purchasing the property not bid on by Mays. After the sale, neither Mays nor his wife ever attempted to exercise any control over the property; and thereafter the City of Jackson collected rentals on a part of the property. After the sale by the City of Jackson to the defendant, he thereafter collected rentals, made valuable improvements on the property, and was in the uninterrupted possession and control of the property from August, 1937, until the filing of the present suit in March, 1943.
On the trial, neither the plaintiff nor her husband, who were present at the trial, denied that he was, in his handling of the property, the agent of his wife. Neither took the stand to testify.
We think — under this undisputed evidence, showing, among other things, the exclusive control and management of the property in question by Mays for years, from the date he executed a deed to his wife until the date of the tax sale, with the knowledge and acquiescence of his wife, as well as the previous sworn admissions of the wife, unexplained or denied on the present trial, to the effect that her husband was her agent in managing the property — that a finding was demanded that her husband was her general agent in the control and management of the property, and that such relationship existed at the time of the tax sale.
(a) The evidence establishing the agency of the husband for his wife, the tax executions issued against him in personam, subsequently to the transfer of title by him to his wife, were not invalid because not issued against the owner of the property.
Assessments for taxes on the property had been made by the city against Mays prior to the date he transferred title, and he had paid the taxes thereon. Subsequently to his transfer of title, he as the general agent of his wife continued to manage the property and to contact the taxing officials with reference to the property, and to pay taxes thereon. So far as the evidence shows, Mrs. Mays never notified the city of any change in the status of the title of the property, and never attempted to pay any taxes on the property. In the circumstances, the fact that the city in making an assessment made it against the agent of the true owner, instead of the owner, would not render the assessment and subsequent tax sale thereunder void.
"As a general rule, no property can be sold under a tax execution in personam as the property of the defendant therein, when the defendant has neither title nor possession nor any right to represent the person who has it; and a sale under these circumstances would be void as to the true owner." Haden v. Atlanta, 177 Ga. 869 ( 171 S.E. 703). Since it appears without dispute in this case that the execution in personam was against the person who had the "right to represent" the owner as general agent, and who as such was in the exclusive control and management of the property levied on, we think that the present case falls within an exception to the general rule which requires executions in personam to issue against the true owner. As recognized in the statement quoted in the Haden case, supra, tax executions may be valid though not against the true owner, and such executions have been held valid by this court on a number of occasions.
In State v. Hancock, 79 Ga. 799, 801 ( 5 S.E. 248), a man resided with his wife and daughter on lands to which his wife and daughter held title. He returned the land and failed to pay taxes thereon. With reference to the validity of an execution in personam against him, this court held: "While it is true that the legal title to this house and lot was in the claimants, it is also true that it had never been returned by them for taxes in the years for which these executions were issued. They had allowed the husband and father to return it as his own. All the property, of whatever kind, in this State, unless expressly exempted by the laws thereof, or by the laws of the United States, is subject to taxation and must pay its pro rata part of the taxes for the support of the government, in whosoever hands it may be, or whoever may return the same for taxation. It is not incumbent upon the State or county to investigate the legal title to property before assessing the same. The only duty of the tax receiver of the State and county in regard to this matter is to see that all the property, not exempted as above set out is returned by someone. If it is not returned by the legal owners, as in this case, but is returned by the husband and father, while in possession, the State and county are entitled to the taxes thereon, and if the taxes are not paid by the person who returns the property for taxation, nor by the legal owner thereof, the tax collector, finding the return of the property on the receiver's digest, has a right, indeed it is his duty, to issue execution against the person who returned the same, and have it levied thereon."
In Dawson v. Dawson, 106 Ga. 45 ( 32 S.E. 29), it was held: "Where property has been duly sold under a tax fi. fa. against one who returned the property for taxes and who was in possession thereof, such sale is not invalid because the property did not belong to the defendant in fi. fa. but to his minor children, nor because the fi. fa. included taxes upon other property that did not belong to the minors."
In Barnes v. Lewis, 98 Ga. 558 ( 25 S.E. 589), this court held: "Where a trustee having the title to realty returned it for taxation for a particular year in his own name, making no other tax return for that year, and the property was afterwards sold under a tax execution issued against him individually and based upon the return indicated, and, though not so appearing on the face of the execution, the `property tax' included therein was in fact the tax on this identical property, the purchaser at the sale, if the same was otherwise free from objection, obtained a good title as against the cestuis que trust represented by the trustee, and this is true, although the poll tax of the latter was also included in the tax execution."
This court, in Hight v. Fleming, 74 Ga. 592, held valid a tax fi. fa. in personam against J. F. Watson, though the execution issued against property owned by G. B. Watson, it appearing that J. F. Watson was the agent of G. B. Watson.
(b) Under the undisputed facts disclosed by the record, the plaintiff was estopped from attacking the validity of the tax sale. "The principle that one who by his acts or omissions has induced another to change his circumstances, without fault on his part, is estopped, applies to all sales, and this whether without such conduct the purchaser would have acquired a good title or not." Osborn v. Elder, 65 Ga. 360. In Byars v. Curry, 75 Ga. 515, 519, this court held: "There can be no doubt, under the facts of this case, but that Dumble was, and his administrator is, estopped from denying the legality and validity of the sale of this land. He pointed out the property to be levied on; he directed the sheriff to advertise and resell this property; he was present and bid at the sale. These acts estop him from saying that the sale is void."
We think it clear in the instant case that the acts and conduct of the plaintiff and her agent, as established by undisputed evidence, were sufficient to estop the plaintiff from denying the validity of the tax sale as against the City of Jackson and privies in title.
In view of the foregoing rulings, the evidence did not authorize the verdict; and the trial court erred in overruling the motion for new trial on the general grounds.
2. In view of the rulings in subsection (a) of the preceding division of this opinion, the trial judge erred in the following charge to the jury: "If you find the plaintiff is not estopped from maintaining this action, and the defendant does not hold title by prescription, then you are authorized to find the title to the land in dispute to be in the plaintiff." The effect of the charge was to exclude the defense that the defendant held title to the property by virtue of a valid tax deed, and a subsequent purchase by the defendant from the purchaser at the tax sale.
3. We have examined other special grounds, complaining of a failure to charge lengthy written requests, and we find them to be without merit, because these requests were either subject to the objection that they are argumentative, or not adjusted in their entirety to the pleadings and the evidence, or do not, as a whole, embrace sound propositions of law. Other complaints as to excerpts from the charge show no reversible error.
4. The final special ground of the motion for new trial complains of the exclusion of evidence. Quoted therein are four pages of the transcript of evidence, consisting of questions and answers, some excluded and some admitted, together with colloquies between court and counsel. It appears that counsel for the defendant was attempting to show certain acts and conduct of the plaintiff's husband at the tax sale, and prior thereto and after the sale, and the court excluded certain of the evidence, on the ground that agency had not been shown. It further appears that this evidence was offered before facts and circumstances showing agency were introduced in evidence. Under the circumstances, the trial court did not err in excluding the evidence, although it would appear that the evidence would have been relevant on the question of agency and estoppel, if it had been introduced at the proper time, after laying a proper foundation for its introduction.
Judgment reversed. All the Justices concur.