Interstate Bond Co. v. Phœnix Mutual Life Insurance

183 S.E. 783, 181 Ga. 678, 1936 Ga. LEXIS 407

• Court: Supreme Court of Georgia
• Decided: January 16, 1936
• Docket: No. 11128
• Status: Published

Opinions

Bell, Justice.

(After stating the facts.)

1. Whenever any person other than the defendant in fi. fa. shall pay any execution for State, county, or municipal taxes, the officer whose duty it is to enforce the execution shall, on the request of the party paying,- transfer the same to him; and such transferee shall have the same rights as to enforcement and priority as might have been exercised or claimed before the transfer; provided the transferee shall have the execution entered on the general execution docket “within thirty days from said transfer;” and provided further, that in default of record the execution shall lose its lien on any property which has been transferred bona fide and for a valid consideration before the record and without notice of the existence of such execution. Code of 1933, § 92-7602.

2. A tax execution issued merely against an estate is void. Wilson v. Eatonton, 180 Ga. 598 (180 S. E. 227). But where such an execution was issued by a tax-collector on non-payment of taxes due by an administrator, and a third person at the request of the administrator paid the full amount thereof, including interest and cost, to the sheriff whose duty it would have been to enforce the execution if valid, and obtained a transfer which together with the execution was recorded within 30 days in accordance with the statute, all parties believing that the execution was valid and intending that it should be sold and transferred as an enforceable tax execution, the payment by the transferee did not amount to a pa}'ment of the taxes which had accrued on the property assessed, but should be treated as the intended consideration for a valid tax execution with a transfer as contemplated by statute.

3. In such case, on discovery that the execution and transfer were void because the execution was not issued against any person, it was legal and proper, on the request of the person who had made the payment as indicated, and without further consideration, for the tax-collector to issue a new execution in proper form, and for the-sheriff to execute a new transfer of such new execution; it being the duty of these officers, on demand, to supply to the transferee the rights intended by the parties in the original transaction. Thompson v. Adams, 157 Ga. 42 (120 S. E. 529); Thomas v. Lester, 166 Ga. 274 (142 S. E. 870); Merchants & Mechanics Bank v. Tillman, 106 Ga. 55 (31 S. E. 794); Butts County v. Jackson Banking Co., 129 Ga. 801 (3, 4) (60 S. E. 149, 15 L. R. A. (N. S.) 567, 121 Am. St. R. 244). Cases like Smith v. Mason, 48 Ga. 177, and State and County v. Wingfield, 59 Ga. 202, involving executions transferred before the passage of the statute authorizing transfers, are inapplicable.

4. In the circumstances the new execution and transfer were valid; and the transferee, on complying with the law as to record, was entitled to “have the same rights as to enforcing said execution and priority of payment as might have been exercised or claimed before said transfer,” and the record, if made “within 30 days from said transfer,” was within due time, regardless of the date when the transferee-may have paid the amount necessary for the transfer of-a valid execution. Code of 1933, § 92-7602; Federal Land Bank v. Farmers & Merchants Bank, 177 Ga. 505 (2) (170 S. E. 504).

5. Under the foregoing principles as applied to the facts of the instant claim case, the judge (trying the case by consent without a jury) erred in finding in favor of the claimant, since the evidence and agreed statement demanded a finding in favor of the transferee. Judgment reversed.

All the Justices concur.