West v. Fulton County

479 S.E.2d 722, 267 Ga. 456, 97 Fulton County D. Rep. 209, 1997 Ga. LEXIS 16

• Court: Supreme Court of Georgia
• Decided: January 21, 1997
• Docket: S96A1629
• Status: Published

Opinions

Hunstein, Justice.

Appellant, the executor of the estate of Thomas West, appeals from the grant of summary judgment to Fulton County, which was based on the trial court’s holding that the purported sale of county-owned property to West by the Fulton County Tax Commissioner failed due to lack of proper authorization by the County. We affirm the trial court.

The property in issue was purchased by Fulton County in December 1980; the deed was recorded in July 1981. Due to inadvertence, the Fulton County Tax Commissioner was not informed that the property was owned by the County and the Commissioner levied on the property and conveyed it to West in June 1982 for nonpayment of 1979, 1980, and 1981 ad valorem property taxes. The tax deed was recorded in July 1982. After the expiration of the one-year statutory period, West filed a notice of redemption naming Fulton County’s predecessor in title as defendant in fi. fa.; copies of the notice were served on the predecessor in title, Fulton County, and the State of Georgia. It does not appear from the record that West or appellant have made improvements to the property and it is uncontroverted that no taxes were paid on the property from the time of the sale until February 1995, a few weeks before Fulton County filed suit, although the record reflects that appellant knew at least by October 1994 of Fulton County’s claim to the property. The record also reflects that West was extremely experienced in real estate transactions, having, at the time of this suit, over 300 properties in Fulton County in his name.

1. The manner in which a county may dispose of county-owned property is expressly addressed by statute. See OCGA § 36-9-3 (setting forth the manner in which property may be sold). OCGA § 36-9-2 provides that

[t]he county governing authority shall have the control of all property belonging to the county and may, by order entered on its minutes, direct the disposal of any real property which may lawfully be disposed of and make and execute good and sufficient title thereof on behalf of the county.

(Emphasis supplied.) See also the comparable provision in OCGA § 36-10-1 (requiring contracts with a county to be entered on minutes). Applying the predecessor to OCGA § 36-9-2, this Court has held that where there is no resolution on the minutes by a county board of commissioners authorizing the conveyance of county-owned property or a subsequent ratification of the deed, “in the absence of such county action, the purported conveyance did not pass title to the land therein described.” Head v. Lee, 203 Ga. 191, 201 (4) (45 SE2d 666) (1947). See also Malcom v. Webb, 211 Ga. 449, 455 (3) (86 SE2d 489) (1955) (applying the predecessor to OCGA § 36-10-1 to hold that until recorded on minutes, no contract is binding on county).

There are no exceptions set forth in OCGA § 36-9-2 to the requirement that authorization for the conveyance of county-owned property must be duly entered on the minutes of the proper county authority. Thus, the fact that the purported sale of county-owned property in this case was by tax sale does not operate to negate or otherwise nullify the provisions of OCGA § 36-9-2.¹ Accordingly, we reject West’s argument that the requirements of OCGA § 36-9-2 can be circumvented by the tax lien statutes² so that a tax deed issued on county property, in and of itself, entitles the holder of the tax deed to the property where the sale has not been properly authorized as required by OCGA § 36-9-2. Although a party who purchases county property is not without a remedy in the event authorization for an otherwise properly-approved transaction is not entered on the minutes, in that cases have held that where the deed is executed and should be recorded, mandamus is available as the applicable legal remedy, Dade County v. Miami Land Co., 253 Ga. 776 (2) (325 SE2d 750) (1985), it is uncontroverted in this case that at no time since the sale in 1982 did either West or appellant file a mandamus action against Fulton County to obtain entry of authorization for the sale on the County’s minutes.³

2. We find no merit in appellant’s arguments that summary judgment to the County was improper because questions of fact remain regarding the issues of waiver, estoppel, and laches. As to waiver, there is no evidence that the County intentionally or voluntarily relinquished a known right, see Rock v. Ready Trucking, 218 Ga. App. 774, 775 (463 SE2d 355) (1995); as to laches, there is no evidence that the “ascertainment of truth” has been impeded by the delay in this case, OCGA § 23-1-25; and as to equitable estoppel, the record reveals that West has failed to adduce evidence raising genuine issues of fact regarding all the required elements of equitable estoppel. See Bell v. Studdard, 220 Ga. 756, 759 (4) (141 SE2d 536) (1965).

Judgment affirmed.

All the Justices concur, except Carley, J, who dissents.

1 The absence of any distinction in the tax lien statutes between privately-owned property and government-owned property is understandable, given that a county does not owe itself taxes on its own property and thus, in the proper order of things, no tax levy should ever be issued against county-owned property by the county’s own tax commissioner.

2 We note that should we accept West’s position, the result would also require circumventing the long-standing policy behind that statute which, based on the fiduciary relationship between government and citizens, requires governments, through its agents, to obtain the best price upon the sale of government property. Timbs v. Straub, 216 Ga. 451 (4) (117 SE2d 462) (1960).

3 We note that mandamus as a remedy may not lie where an applicant is guilty of gross laches or has permitted an unreasonable period of time to elapse. Southern Airways v. Williams, 213 Ga. 38 (2) (96 SE2d 889) (1957).