Opinion
14563
November 10, 1937.
Before OXNER, J., Spartanburg, January, 1937. Affirmed.
Action by the Home Building Loan Association against the City of Spartanburg and others. Judgment for plaintiff and defendants appeal.
Order of Hon. G. Dewey Oxner follows:
This action was commenced on August 5, 1936. Plaintiff alleges inter alia that certain real estate, which is now owned by it in fee simple, was sold on June 1, 1936, by the tax authorities of the City of Spartanburg to satisfy city taxes on said property for the years 1931 to 1935, inclusive. Plaintiff attacks said sale principally upon three grounds:
(1) That there was no levy upon or seizure of the property as required by law prior to the sale.
(2) That the lien for taxes for the years 1931 to 1933, inclusive, has expired.
(3) That the penalties attached to said taxes for the years 1934 and 1935 were illegal. Plaintiff asks, (a) that the alleged sale be declared illegal and the cloud on its title removed, (b) that the lien for taxes for 1933 and the years prior thereto be adjudged as having expired, (c) that the penalties and costs on taxes for the years 1934 and 1935 be declared illegal, and, (d) that the defendants be restrained from issuing title to said property.
With the exception of certain formal allegations, the answer of the defendants was a general denial of the allegations contained in the complaint.
The case was tried before me in Spartanburg. Considerable testimony was taken, most of which is wholly irrelevant. There is no dispute as to the material facts and only legal questions are involved.
The property described in the complaint was sold to satisfy alleged past-due taxes for the years above mentioned on sales day in June, 1936, and bid in by the city. Foreclosure proceedings on mortgage held by plaintiff were commenced on May 20, 1936. Said property was sold under said foreclosure proceedings on sales day in August, 1936, and purchased by the plaintiff, who acquired fee-simple title from the Master by deed dated August 5, 1936.
The grounds upon which the tax sale are assailed will be disposed of in the order hereinabove stated.
It is undisputed from the testimony that there was never any levy made, or seizure of the property prior to sale. The only act done was to mail notice of execution and levy. No entry was ever made upon the property. The recent case of Glymph v. Smith, 180 S.C. 382, 185 S.E., 911, 105 A.L.R., 631, is conclusive that there has been no seizure of the property as required by law. Upon this ground it is clear that the sale of June 1, 1936, was illegal.
The next grounds upon which the sale is attacked is that the lien for taxes for the years 1931 to 1933, inclusive, had expired prior to the sale. It is contended by the plaintiff that the lien for city taxes for the City of Spartanburg is governed by Section 7470 of the Code of 1932, and that under this section such lien could not extend beyond a period of three years. I gather from the argument of counsel for defendants that they contend that said lien is governed by Section 7437, Code of 1932, and that there is no limitation as to the lien for such taxes. In order to determine which of these two sections is applicable to the city taxes of Spartanburg, it necessary to review the history of the two sections. In order to get a clear picture of the history of these two sections, I have hereinbelow set out in chronological order the various amendments made from time to time from their inception. The column on the left represents the history of Section 7437 and the column on the right the other section, known as Section 7470 of the Code of 1932.
Section 7437 Section 7470
1896 (22 Statutes, page 67):
Act providing for the incorporation of towns having 1,000 to 5,000 inhabitants, empowering said towns to impose a tax which would constitute a lien, with no limitation as to duration. 1901 (23 Statutes, pages 648, 653):
Act providing for the incorporation of cities of more than 5,000 inhabitants, empowering said cities to impose a tax, and providing that such taxes would constitute lien "until paid." Code 1902 (Section 1984):
Apparently undertakes to consolidate both the foregoing Acts making said section applicable to towns and cities both under and over 5,000 inhabitants. 1908 Acts, page 1045: 1908 Acts, pages 1052, 1053: Authorizes municipal corporations Amends Section 1984 of containing more 1902 Code, so as to authorize than 5,000 inhabitants to a penalty not exceeding 15 impose taxes for certain purposes, per cent. on unpaid taxes and and further provides
Section 7437 Section 7470
to further provide for costs that said Act shall only apply and fees in collection of to City of Anderson. No same. lien created.
Code of 1912 (Section Code 1912 (Section 2937): 2950): This section carries forward Embodies Section 1984 of the foregoing Act. 1902 Code as later amended. 1912 Acts, page 635:
Section amended so as to authorize right of levy for principal and interest on outstanding bonds. 1915 Acts, page 71:
Section 2937 of 1912 Code amended so as to include the City of Greenville. As now amended, this section applies only to Cities of Greenville and Anderson.
1946 Acts, page 736:
Greenville withdrawn from this section, leaving it applicable only to Anderson. 1918 Acts, page 851:
Section amended by adding Spartanburg, and providing in the City of Spartanburg the levy should not exceed 15 mills and authorizing City of Spartanburg to pay rents due by City on lands used for camp purposes. By this amendment this section was applicable only to cities of Anderson and Spartanburg.
Section 7437 Section 7470
1919 Acts, page 148: 1919 Acts, page 273:
Section amended with reference Section amended so as to to town of York, apply to all cities containing which has no bearing. more than 5,000 inhabitants. Provision for levy for camp purposes by City of Spartanburg remained. 1920 Acts, page 730:
Amended as to the town of Clover. Has no bearing on question at issue. 1920 Acts, page 801:
Amended so as to increase authorized millage from 1 to 2 per cent, in towns under 5,000 inhabitants. Towns over 5,000 inhabitants eliminated. So that by this amendment section now applies only to towns under 5,000 inhabitants.
Note: Note:
By this last-named amendment Since this section at this this section authorizing point of time applies to all levy, making taxes a lien until cities over 5,000 inhabitants, paid, was now applicable it would seem that, as the only to cities under 5,000 statutory law then stood, inhabitants, which so remained cities under 5,000 now had until 1924. Amendment, a lien for taxes and over 5,000 hereafter referred to. For a inhabitants had no lien review of these amendments, for taxes levied. see Charleston Heights Co. v. City Council of Charleston, 138 S.C. 187, 202, 136 S.E., 393.
Section 7437 Section 7470
Acts 1920, page 867:
Amended only as to Town of Blackville. Has no bearing.
Section 4549, Code 1922: Section 4585, Code 1922:
Embodies all previous Embodies previous amendments, amendments and section applies but for some reason only to towns under 5,000 provision about Spartanburg inhabitants. levying for camp purposes omitted. Section applies to all cities over 5,000 inhabitants. 1922 Acts, page 922:
Amended Section 2950, 1912 Code, by adding proviso authorizing Spartanburg to impose a tax not exceeding 21 mills. 1924 Acts, page 958:
Amended Section 4549, Code 1922, by striking out and inserting new section giving council authority to levy a tax, etc., but no reference to class of cities intended to be affected, except by implication. 1924 Acts, page 960:
Amended Section 4549 by striking it out and inserting new section applicable to cities both over and under 5,000 inhabitants.
1926 Acts, page 1029:
Section 7437 Section 7470
Amends Section 4549 of 1922 Code by adding a proviso as to the Town of York.
Note:
Section 4549 only applied to towns under 5,000 inhabitants. This section had been repealed in 1924 and new section inserting applying to towns both under and over 5,000 inhabitants. Section 4549 as amended by this Act only applied to cities from 1,000 to 5,000 inhabitants, as no reference is made to cities over 5,000 inhabitants,
1927 Acts, page 76.
Section 4585, Code 1922, amended in order to supply parts of Acts omitted therefrom, for the purpose of making such taxes a lien. Section 7470 as it now appears in Code was at this time first enacted, with the exception of certain minor amendments hereinafter referred to. It is applicable only to cities of more than 5,000 inhabitants, gives such cities for the first time a lien for taxes and restricts the limitation of the lien to three years.
Section 7437 Section 7470
Note:
Doubtless this amendment was brought about by the decision filed in December, 1926, in Charleston Heights Co. v. City Council of Charleston, 138 S.C. 187, 136 S.E., 393, in which the Court held that, unless made so by statutes, taxes were not a lien. It provides, "That all Acts or parts of Acts inconsistent with, or repugnant to this Act, be, and the same are hereby, repealed."
1929 Acts, page 194:
Act of 1927 amended with reference to liens for paving assessments.
1931 Acts, page 180:
Section 4549 again amended by adding a proviso as to the town of York. Note:
As thus amended it applies only to towns of 1,000 to 5,000 inhabitants, as it has no reference to towns over 5,000 inhabitants. 1931 Acts, page 313:
Proviso added to town of Dillon.
1932 Code, Section 7437: 1932 Code, Section 7470:
Although the provisos Section contains 1927 Act with reference to cities over as amended.
Section 7437 Section 7470
5,000 inhabitants was omitted in 1931 amendments, such were now incorporated. The Code Commissioner went back to the Act of 1924.
1933 Acts, page 128:
Section 7437 amended by adding a proviso as to City of Spartanburg, making the penalty not exceeding 10 per cent. on 1932 taxes of Spartanburg.
1933 Acts, page 172:
Amended with reference to cities over 5,000 inhabitants. Has no bearing.
1934 Acts, page 1576:
Amends Section 7437, Code of 1932, as to Town of York.
1935 Acts, page 39:
Amends Section 7437, Code of 1932, as to Town of Mount Pleasant.
1935 Acts, page 291:
Amends Section 7437 as to Town of Walterboro.
The greater portions of Section 7437 and Section 7470 are verbatim, the same. With the exception of certain provisos, applicable only to certain towns, the only differences between the two sections are as follows:
(a) Section 7437 authorizes a levy not exceeding 1 1/4 per cent. in cities over 5,000 inhabitants and not over 2 per cent. in towns between 1,000 and 5,000 inhabitants. Section 7470 authorizes cities over 5,000 inhabitants to impose a levy with no limitations as to amount. Section 7470 is only applicable to cities having more than 5,000 inhabitants.
(b) Section 7470 provides that the cities shall not have power to extend the lien for taxes for a longer term than three years after the tax becomes due and payable. No limitation appears in Section 7437.
(c) Section 7470 has a special provision as to paving assessments.
From a history of these sections, I think it is clear that cities over 5,000 inhabitants are governed by Section 7470 as to authority to levy taxes, and as to the extent of the lien thereof. The amendment of 1927 to Section 7470 is the last general enactment by the General Assembly, and would control when in conflict with any previous enactments. All later amendments to both sections were of a local nature. The amendment of 1927 necessarily had the effect of repealing certain portions of the other sections. These repealed portions should not have been inserted in Section 7437 of the 1932 Code. In addition to this, the General Assembly of 1933, when undertaking to reduce the penalty in the City of Spartanburg for 1932 taxes, amended Section 7470 and not Section 7437, thereby construing Section 7470 as applicable to the City of Spartanburg. This construction gives harmony to both sections. The other construction would in effect nullify Section 7470.
Therefore the limitation of the lien for taxes in the City of Spartanburg is governed by Section 7470, the maximum duration of which is three years.
The third ground upon which the sale is attacked is that penalties for the last two years were erroneously attached.
Section 7470 (also 7437) provides: "The said council shall also have power to provide for the payment of a penalty not exceeding fifteen (15) per cent of the taxes so levied for non-payment of the said taxes when due."
The ordinances of the City of Spartanburg for the years 1930-1931, 1931-1932, and 1932-1933 expressly provided for and named a penalty of 15 per cent.
On March 10, 1933, the General Assembly passed an Act limiting the penalty in the City of Spartanburg for 1932 and years thereafter to 10 per cent.
The ordinance for the year 1933-1934, Section 5, provides: "That any person, firm or corporation, failing to make payment of taxes as herein provided in Section 4, shall be subjected to a penalty as provided by law."
A like provision was inserted in the ordinance for the years 1934-1935 and 1935-1936.
On July 6, 1936, council passed an ordinance providing: "That from and after the passage of this ordinance any person * * * failing to pay any tax due the City of Spartanburg when due, under the terms of the respective ordinance or ordinances under which said tax is assessed or levied, shall be subject to a penalty of 10% of the delinquent tax."
It is to be observed that the last-named ordinance was passed after the sale, which was made in June, and therefore could not affect the legality of the sale which had already taken place. Furthermore, the ordinance would not be given a retroactive construction. Vesta Mills v. City Council, 60 S.C. 1, 38 S.E., 226.
From the foregoing it is clear that the General Assembly has not undertaken to fix the penalty, but has only delegated to or empowered city council to fix a penalty not exceeding 10 per cent. During the period from 1933 to July, 1936, council did not exercise the power vested in it to fix a penalty. It only stipulated that the penalty shall be "as provided by law." It is clear that there was no "penalty prescribed by law." Therefore, during this period taxes carried no penalty after nonpayment.
It follows from the foregoing views that the alleged tax sale is invalid for the reasons: (1) That there was no levy or seizure of the property as required by law; (2) that the lien of the taxes for certain years, and which were included in the execution, had expired; (3) that the execution under which the property was sold contained penalties for certain years which were illegal.
In the case of Charleston Heights Co. v. City Council of Charleston, 138 S.C. 187, 136 S.E., 393, 399, the Court said:
"Assuming that the city council has the same rights as to school taxes as are conferred upon the State, the law seems plain that a tax sale is void unless the property seized was liable for all of the taxes for which it was sold; and, unquestionably, as there was no lien for the city taxes proper, the sale must be declared void.
"`The decisions generally recognize the following fundamental rules: That a tax sale is invalid for every purpose unless the property was at the time liable for all the taxes for which it was sold. * * * *' 37 Cyc., 1287."
The alleged sale is therefore subject to be set aside on either of the above grounds. While not entirely necessary to have passed upon all three of said grounds, I have done so, because in the public interest I deemed it expedient that all of said matters be determined.
It is urged by defendants, however, that this action cannot be maintained, for the reason that it is an action against the city. It is elementary that neither the city nor any political subdivision of the State cannot be sued without its consent. In support of their contention, counsel for defendants rely upon the recent case of Bomar v. City of Spartanburg, 181 S.C. 453, 187 S.E., 921, 927. I have carefully examined this case, and the facts are entirely different from the facts under consideration. In the Bomar case the taxes had been collected and paid over to the city by the Master. Counsel further cite 26 R.C.L., 438, where the following statement is made: "When land sold for non-payment of taxes has been bought in by the State, the owner cannot bring a bill to remove the cloud upon his title against the Comptroller of the State, because such proceeding is in effect a suit against the State itself."
In support of this statement, the case of Sanders v. Saxton, 182 N.Y., 477, 75 N.E., 529, 1 L.R.A. (N.S.), 727, and note, 108 Am. St. Rep., 826, is cited. In that case the property was sold for taxes, time for redemption had expired, and deed made to the State. Title to the property had become vested in the State, and it was held that the action to remove title was one in effect against the State and could not be maintained.
In the case of Croom v. Pennington, 59 Fla., 473, 52 So., 957, it was held that an action of this kind could be maintained and was not a suit against the State. The Court said: "Such a proceeding is not a suit against the State, but is to correct an illegal act of an officer. A suit to obviate the effect of an illegal act of an officer as such is not a suit against the State, for the State authorizes only legal acts by its officers. The State acquires no right under an illegal and void tax certificate issued to it by its officers, and the illegal act of the officer may be reached by the Courts in proper proceedings."
Also see Vesta Mills v. City Council, 60 S.C. 1, 38 S.E., 226.
The procedure here followed is exactly the same as followed in the Charleston Heights Co. v. City Council of Charleston, supra. It is true that the question as to whether such an action was maintainable was not passed upon by the Court. It was an action against the City of Charleston to set aside a tax sale and the Supreme Court gave the relief sought.
Plaintiff seeks in this action to have the sale declared void and illegal, that the validity of certain of the taxes and penalties be determined, and that the defendants be restrained from issuing title to the property.
Conceding that this action cannot be maintained to remove cloud on title, which I do not deem it necessary to pass upon, it seems to me clear that the defendants can be restrained from issuing title to the city or any other person at the close of the redemption period. Such is not an action against the city, but one to prevent the officers of the city from doing an unlawful act. Such an action does not fall under the doctrine announced in Lowry v. Thompson, 25 S.C. 416, 1 S.E., 141, but comes within the principle recognized in Ware Shoals Manufacturing Co. v. Jones, 78 S.C. 211, 58 S.E., 811, and Sutton v. Town of Fort Mill, 171 S.C. 291, 172 S.E., 119. For distinction between suit against State and against officials of the State to restrain collection of an illegal tax see 26 R.C.L., 472.
There is another reason why such action can be maintained to restrain issuance of deed. The city undertook through the means of execution and sale to collect taxes which did not constitute a lien on the property, because the duration of the lien had expired.
There is no remedy to pay said taxes under protest. In the Bomar case, supra, the Court said: "Section 2846 gives the right to a person who protests the payment of taxes because he conceives that they have been unjustly or illegally assessed and collected to bring action for the refund of such taxes, but nowhere in that section, or elsewhere, is the right given to sue for the refund of taxes, the lien of which has expired."
If there is no remedy to pay under protest, it is well settled that the collection of the tax can be enjoined. In Santee River Cypress Co. v. Query et al., 168 S.C. 112, 167 S.E., 22, the Court said: "It is not only within the power of a Court of Equity, but the duty rests upon it, to enjoin the collection of an illegal tax in those cases where no adequate legal remedy is provided for the aggrieved taxpayer. Ware Shoals Manufacturing Co. v. Jones, 78 S.C. 211, 58 S.E., 811."
It must be remembered that no title has been made to the city, the title remains in the owner, and the time for redemption has not expired.
It is further contended it was a condition precedent to the prosecution of this action that the plaintiff tender the amount of the taxes which are not in dispute. I assume this has reference to taxes for the years 1934 and 1935.
The weight of authority does support the principle that, where one seeks to enjoin the collection of an excessive tax, he must tender what is admitted to be due before injunction will be allowed and that, before a Court will remove cloud on title arising from alleged liens for taxes, there must be paid or tendered the tax justly due and owing. For the reasons hereinafter stated, I do not think this principle applicable to the relief which should be granted in this action. Assuming it was, however, I am inclined to think that it would not necessitate dismissal of the action, but the Court would grant the relief which it deemed proper, conditioned upon payment of such taxes within a stipulated period. Singer Sewing Machine Company v. Cooper (D.C.), 263 F., 994.
However, it is not proposed to enjoin or stay the collection of the taxes on this property for the years 1934 and 1935. If such were the case the foregoing principles perhaps would apply. The only relief that can or should be granted is to enjoin the officials of the city from issuing deed pursuant to a sale clearly illegal. The city is not restricted in any manner in the collection of the taxes justly owing and upon which the duration of the lien has not expired. In 61 C.J., 1091, we find: "When suit is brought to enjoin that part of certain taxes only that are claimed to be invalid, complainants are not required to pay the taxes not sought to be enjoined as a condition precedent to their right to sue."
Also see Bell v. Meeker, 39 Ind. App. 224, 78 N.E. 641.
It is further contended that at the time of the sale the status of the plaintiff was that of mortgage, and that plaintiff cannot maintain this action. This is clearly untenable. To sustain an action of this kind, "it is not necessary that the plaintiff be owner of the fee; ownership of any such interest in the property as would entitle a party to redeem from a valid tax sale will be sufficient." 26 R.C.L., 438. Also see 61 C.J., p. 1404; Scottish American Mortgage Company v. Minidoka County, 47 Idaho 33, 272 P., 498, 65 A.L.R., 663. Under the statutory law of this State a mortgagee may pay the taxes before levy and sale (Section 2855, Code of 1932), or he may redeem after sale (Section 2855, Code of 1932). In addition to this, at the time of the commencement of this action plaintiff had acquired fee-simple title. It is further stated that the mortgagor is making no complaint as to the validity of the taxes or expiration of the lien. She can take no position to the detriment of the real party affected thereby, the plaintiff herein.
It is further maintained that the property in question has not been sufficiently identified. The testimony sufficiently identified the property.
I think I have passed upon all contentions raised by defendants.
Plaintiff offered testimony to the effect that it had no notice of alleged sale until just immediately prior thereto. No duty rested upon the city to give notice to the plaintiff. All of this testimony is clearly irrelevant.
I have given unusual care in the consideration of this case because of its public nature and importance to the City of Spartanburg, The Courts are always extremely cautious in matters affecting the public revenue. The conclusions reached herein were inevitable.
It is ordered that the alleged sale of June 1, 1936, be, and the same is hereby, adjudged invalid; and that the defendants be, and they are hereby, permanently enjoined and restrained from issuing title to the City of Spartanburg, or any other person, under and by virtue of said sale, and from performing any further acts towards consummation of said sale. This order is entirely without prejudice to the rights of the city to take such action as may be proper or necessary for the purpose of collecting or enforcing the collection of any lawful taxes against said property.
Messrs. Odom Bostick and Esten C. Taylor, for appellant, cite: Pleadings: 27 S.C. 150; 173 S.C. 224; 175 S.C. 535; 190 S.E., 244; 20 S.C. 93; 113 S.C. 487; 101 S.E., 833; 163 S.C. 327; 161 S.E., 499; 178 S.C. 77; 183 S.E., 321; 158 S.C. 534; 155 S.E., 890; 39 S.C. 369; 17 S.E., 803; 79 S.C. 555; 61 S.E., 202; 7 R.C.L., 1043; 129 S.C. 18; 123 S.E., 324; 25 Cyc., 665; 69 S.C. 360; 48 S.E., 276; 79 S.C. 473; 60 S.E., 1114; 180 S.C. 382; 185 S.E., 911; 165 S.C. 367; 163 S.E., 881; 23 S.C. 89; 34 S.C. 541; 13 S.E., 845. Writ of mandamus: 154 S.C. 355; 151 S.E., 218; 138 S.C. 374; 136 S.E., 487; 162 S.C. 52; 160 S.E., 144; 148 S.C. 118; 145 S.E., 695. Construction of statutes: 25 R.C.L., 985; 59 C.J., 1089; 24 F.2d 784; 21 F.2d 550; 40 U.S. 141; 10 L.Ed., 689; 93 U.S. 78; 23 L.Ed., 807; 61 F.2d 82. As to proper levy and seizure: 180 S.C. 382; 185 S.E., 911; 75 S.C. 252; 55 S.E., 309; 67 S.C. 526; 46 S.E., 343.
Messrs. DePass , DePass, for respondent, cite: Validity of tax sale: 180 S.C. 382; 185 S.E., 911; 67 S.C. 526; 46 S.E., 348. Construction of statutes: 138 S.C. 187; 96 Pac., 1; 44 C.J., 255; 45 L.R.A., 348; 141 S.C. 207; 138 S.C. 374. Payment of taxes under protest: 78 A.L.R., 186; 49 S.C. 188; 27 S.E., 1; 181 S.C. 453; 108 A.L.R., 209; 78 S.C. 211; 474 Fed., 375; 168 S.C. 112. Pleadings: 79 S.C. 310; 166 S.C. 475; 80 S.C. 47; 154 S.C. 138; 141 S.C. 72; 63 S.C. 525; 41 S.E., 763; 43 S.C. 221; 20 S.E., 979; 49 A.S.R., 829; 87 S.C. 82; 80 S.C. 38; 60 S.C. 381; 38 S.E., 622; 70 S.C. 8; 48 S.E., 61. Tender: 21 C.J., 445; 61 C.J., 1658; 44 C.J., 1666; 51 C.J., 254. Proper parties: 44 C.J., 4520; 61 C.J., 1663, 1664; 69 S.E., 569; 525 So., 957; 78 S.C. 217; 171 S.C. 295.
November 10, 1937. The opinion of the Court was delivered by
On June 1, 1936, the defendant J.H. Rothrock, tax collector for the defendant City of Spartanburg, sold a parcel of land in said city to satisfy its claim for unpaid delinquent taxes assessed against the property for the years 1931, 1932, 1933, 1934, and 1935. Thereafter the plaintiff brought suit against the City of Spartanburg, and the other defendants named herein, in which he prayed: (a) That the tax sale of June 1, 1936, be declared illegal and void, and that the cloud be removed from off and over plaintiff's title; (b) that the lien for all taxes due and unpaid for the year 1933 and years prior thereto be declared barred by laches and the statute of limitations of the State of South Carolina; (c) that the penalties, execution costs, and commissions added to the taxes for the years 1934 and 1935 be declared illegal and stricken from said taxes; (d) that the Act of March 3, 1933 (38 St. at Large, p. 128), whereby it is sought to give the City of Spartanburg the authority to charge penalties different from those of other cities in the State of South Carolina be declared unconstitutional, null and void and of no effect; (e) that the defendants be restrained from issuing title to said property; (f) and for such other and further relief as to this Court may seem just and proper.
The case was tried before Hon. G. Dewey Oxner, Circuit Judge, who filed his decree, in which he sustained the main contentions of the plaintiff, and granted the relief prayed for. The case is here upon appeal by the defendant.
We have given the most careful consideration to the issues raised by the defendant's exceptions, and have reviewed the applicable law. In a very able and exhaustive brief, the appellants, in the beginning of their argument, pay this well-deserved compliment to the trial Judge: "We wish to state at the outset that though we find ourselves in decided disagreement with practically all of the conclusions reached by the learned Judge by whom this case was heard, we are impressed after a careful reading of his decree, with the conscientious, painstaking and thorough consideration which the matters discussed therein have received at his hands, and which the lawyers of this State have come to expect from the Judge of the Thirteenth Judicial Circuit."
We are similarly impressed, and are convinced that the learned Circuit Judge in his decree has correctly disposed of all of the issues presented to him and now presented to us. We, therefore, adopt the decree of the Circuit Court as the judgment of this Court. Let it be reported.
The exceptions are overruled.
Judgment affirmed.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM and BAKER concur.
MR. JUSTICE CARTER did not participate on account of illness.