Harry L. Winter Inc. v. First National Bank

Supreme Court of Georgia

Harry L. Winter Inc. v. First National Bank

138 S.E. 794, 164 Ga. 364, 1927 Ga. LEXIS 193

Supreme Court of Georgia·Decided June 20, 1927·No. No. 5815·Published·Cited by 7 cases

Opinion

G-ilbebt, J.

1. Where two creditors of a common debtor, who is insolvent, each has, relatively to the other, the highest lien, each having a security deed upon distinct property belonging to such debtor, and there is outstanding against the debtor a tax execution issued generally, the burden of discharging the lien of the tax execution should, as a general rule, upon equitable principles, be apportioned between the two lien creditors by making each of the separate properties liable ratably for its proportion of the whole amount of the taxes according to the respective valuations at which the properties were assessed and .returned for taxation. Brooks v. Matledge, 100 Ga. 367 (28 S. E. 119).

2. The fact that one of the lien creditors reduced his debt to judgment, subjected thereto the property covered by his lien, and, buying in the property, secured a sheriff’s deed thereto prior to the issuing of the tax fi. fa., and the fact that the other creditor has not sued his debt to judgment, “does not affect the equity which requires a division of this tax burden ratably between them.” Brooks v. Matledge, supra, 370.

3. Merchants &c. Bank v. McWilliams, 107 Ga. 532 (33 S. E. 860), Askew v. Scottish &c. Co., 114 Ga. 300 (40 S. E. 256), Noles v. Few, 155 Ga. [365]*365471 (117 S. E. 374), cited by-plaintiff in error, were eases where property was sold and conveyed by a common grantor at different times to different persons as holders of absolute title, or where purchasers were treated as such; and not where taxes accrued when different creditors held liens of relatively the same priority.

4. The court did not err in refusing to allow the amendment offered by the plaintiff, setting up the payment by plaintiff of taxes in previous years and not included in the tax fi. fa. levied.

[364] Mortgages, 41 C. J. p. 523, n. 75.

Taxation, 37 Cyc. p. 1145, n. 35.

[365] No. 5815. June 20, 1927.

Judgment affirmed.

All the Justices concur. Baum & Baum, for plaintiff. Branch & Snow, for defendant.

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G-ilbebt, J.

1. Where two creditors of a common debtor, who is insolvent, each has, relatively to the other, the highest lien, each having a security deed upon distinct property belonging to such debtor, and there is outstanding against the debtor a tax execution issued generally, the burden of discharging the lien of the tax execution should, as a general rule, upon equitable principles, be apportioned between the two lien creditors by making each of the separate properties liable ratably for its proportion of the whole amount of the taxes according to the respective valuations at which the properties were assessed and .returned for taxation. Brooks v. Matledge, 100 Ga. 367 (28 S. E. 119).

2. The fact that one of the lien creditors reduced his debt to judgment, subjected thereto the property covered by his lien, and, buying in the property, secured a sheriff’s deed thereto prior to the issuing of the tax fi. fa., and the fact that the other creditor has not sued his debt to judgment, “does not affect the equity which requires a division of this tax burden ratably between them.” Brooks v. Matledge, supra, 370.

3. Merchants &c. Bank v. McWilliams, 107 Ga. 532 (33 S. E. 860), Askew v. Scottish &c. Co., 114 Ga. 300 (40 S. E. 256), Noles v. Few, 155 Ga. [365]*365471 (117 S. E. 374), cited by-plaintiff in error, were eases where property was sold and conveyed by a common grantor at different times to different persons as holders of absolute title, or where purchasers were treated as such; and not where taxes accrued when different creditors held liens of relatively the same priority.

4. The court did not err in refusing to allow the amendment offered by the plaintiff, setting up the payment by plaintiff of taxes in previous years and not included in the tax fi. fa. levied.

[364] Mortgages, 41 C. J. p. 523, n. 75.

Taxation, 37 Cyc. p. 1145, n. 35.

[365] No. 5815. June 20, 1927.

Judgment affirmed.

All the Justices concur. Baum & Baum, for plaintiff. Branch & Snow, for defendant.

Harry L. Winter Inc. v. First National Bank, 138 S.E. 794, 164 Ga. 364, 1927 Ga. LEXIS 193 (Ga. 1927).

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