Opinion
13746, 13762.
JUNE 13, 1941. REHEARING DENIED JULY 9, 1941.
Equitable petition; interventions. Before Judge Paul S. Etheridge. Fulton superior court. March 3, 22, 1941.
Ellis G. Arnall, attorney-general, B. B. Zellars, W. K. Meadow, A. J. Tuten, Claude Shaw, and M. F. Goldstein, for State revenue commissioner.
J. C. Savage, E. L. Sterne, J. C. Murphy, and F. A. Hooper Jr., for City of Atlanta.
Spalding, Sibley, Troutman Brock, W. S. Northcutt, and E. H. Sheats, for Fulton County.
O. C. Hancock, H. J. Haas, J. F. Haas, Sol I. Golden, V. B. Moore Jr., George John L. Westmoreland, J. W. Dorsey, W. G. Grant, and G. G. Finch, for other parties.
1. A judgment sustaining a general demurrer to an intervention seeking to cancel tax deeds, on the grounds that the levy was excessive and that an interest less than the fee was conveyed, will not bar a subsequent intervention by the owner within the redemption periods seeking to redeem the property as provided by law.
2. Where one seeking in a court of equity to redeem property sold for taxes admits stated amounts to have been paid for the property at the sale, but fails to allege payment or tender of such amounts before filing such suit, the petition should be dismissed on demurrer. Where property was sold in 1935 for municipal taxes, and no attempt to redeem was made for a period of more than two years thereafter, the right to redeem terminated, and the owner was divested on all title, right, and interest in the property; and where these facts are shown by a petition which also seeks to redeem the same property from a tax sale to one county in 1934, the petitioner, being without title or interest, is not entitled to redeem from the county, whether the redemption period has expired or not; and the action should be dismissed on demurrer. Section 3 of Ga. L. 1937, p. 491, expressly removes such seeds from the operation of that act, and they are controlled by the Code, §§ 92-4402, 92-8301. The constitutionality of section 3 can not be raises for the first time in the brief of counsel in this court.
3. The portion of the order excepted to in the cross-bill of exceptions, it reviewable at all, can not be considered on assignments of error contained in the cross-bill.
Nos. 13746. 13762. JUNE 13, 1941. REHEARING DENIED JULY 9, 1941.
In 1919 Rebie Lowe Rosenkrantz leased certain real estate in the City of Atlanta, Fulton County, Georgia, to Ben J. Massell for a period of fifty years. The lease contract provided, among other things, that the lessee should pay the taxes on the property. Transferees of the lease contract returned the property for taxation and paid all taxes due until 1930, but defaulted in the payment of the taxes due to the city, county, and State for 1930 and each year thereafter until the instant proceedings were filed in 1937. On August 7, 1934, Fulton County was the purchaser at a sale of the property for taxes due to the county and State for 1932, and a deed was duly executed to the county in pursuance of the sale. On October 1, 1935, the City of Atlanta bought in and received a deed to the property at a sale for taxes due the city for the year 1930. On April 28, 1937, the Trust Company of Georgia as executor of the estate of Rebie Lowe Rosenkrantz, deceased, filed suit against the City of Atlanta and the tax-collector of Fulton County, alleging the facts with reference to the taxes against the property, and asking the court for direction. In the proceedings which followed the city, county, and State intervened for the purpose of enforcing their tax claims against the property, and prayed for appointment of a receiver to take charge of and sell the property for this purpose. A receiver was so appointed, and the executor was allowed to distribute the other portions of the estate, it being agreed that the property involved was of sufficient value to satisfy all of the tax claims. During the early stages of the proceedings the city and other taxing units insisted on no interest in the property other than the right to collect their taxes therefrom, but the city later amended its prayers to ask that it be adjudged to have fee-simple title to the property under its tax deed, and that it be decreed that all rights of redemption were barred. The record discloses that on April 4, 1938, the governing authorities of the City of Atlanta passed a resolution accepting an offer of $20,000 by the Investors Finance Company in full settlement of all its tax claims against the property, and that in pursuance of this resolution the finance company paid the city $20,000 and received transfers of tax fi. fas. for the years 1931 to 1938, inclusive. The fi. fa. for 1930, on which the tax sale was based, was not transferred, and no deed was made to the finance company, but the city admitted in its pleadings that it was contemplated that the city should transfer all of its tax liens against the property. The city asked the court to determine the right of the Investors Finance Company, which was a party to the proceedings, and to direct the city as to whether it should under its agreement (a) execute a deed of any kind to the finance company, (b) deliver to the company any taxes that might be paid on the property, or (c) deliver to the company such funds as it might receive from the receiver.
Mrs. W. B. Lowe, who had inherited the interest of Mrs. Rosenkrantz, the lessor, in the property, was on motion made a party over her objections. She thereupon came into the court and attacked the tax deeds of the city and county, on the grounds (1) that they conveyed only the lease hold estate, and did not affect her interest, and (2) that the levies were excessive. She did not make a tender of any part of the taxes. The court sustained demurrers and dismissed her pleadings. She excepted, and this court affirmed the judgment. ( Lowe v. Atlanta, 191 Ga. 76, 11 S.E.2d 891). holding that the tax deeds conveyed the entire fee in the property: and that she could not maintain her attack upon the deeds for excessive levy, because she had failed to make any tender. After the judgment of this court had been made the judgment of the trial court, Mrs. Lowe filed additional pleadings, the material allegations of which were as follows: Her right of redemption has not yet begun to run as to the county deed, because the State has not yet received its pro rata part of the taxes for which the property was sold. Her right of redemption under the city tax deed has not expired, "by reason of the fact that the title to said property has not legally been transferred or assigned or conveyed from the City of Atlanta, and that the City of Atlanta still owns title to the said property by reason of the said tax deed, under the decisions of this court in these cases; and because there has been no foreclosure of the right to redeem pursuant to the act of 1937." She "herein now tenders" to the city and county stated amounts representing taxes and interest for the years for which the sales were made. She attacked the assessments for the other years, on various grounds, including excessiveness, and tendered and offered to pay such amount of taxes for those years as the court might fix and determine to be reasonable. The taxing authorities of the city, the county, and the State filed general and special demurrers to Mrs. Lowe's pleadings, which the judge after a hearing overruled; and the demurrants excepted. The Investors Finance Company sued out a cross-bill of exceptions, because the order overruling the demurrers contained the following language: "It is the judgment of this court that there are no parties at interest in this litigation other than Mrs. Alice Lowe as owner of the property involved, and the State of Georgia, County of Fulton and City of Atlanta, seeking to subject said property to the payment of taxes."
1. By her first intervention Mrs. Lowe sought to cancel the tax deeds held by the city and county. That relief was claimed on the grounds of excessive levy and that the fee was not sold. The judgment dismissing that intervention was affirmed by this court ( Lowe v. Atlanta, supra), thereby adjudicating all questions presented adversely to intervenor. Thereafter the same intervenor, claiming to be the owner and alleging that the periods for redemption had not expired, filed a new intervention seeking to redeem both from the city and the county. It is urged by plaintiffs in error that the matters covered in the last intervention were adjudicated by the former decision. Leaving for the next division of this opinion the determination of whether or not intervenor is the owner and whether the pleadings filed are sufficient in law, we here determine only whether the true owner by proper pleadings should be allowed to intervene at this stage of the case for the purpose of redeeming the property. The Code, § 92-8301 (Annotated Code, § 92-4402), fixes definite periods of time which the owner has in which to redeem property sold for taxes. These statutes confer upon the owner the legal right to wait for the full period of time there fixed before redeeming the property. There was nothing in the previous case to require the owner to forego any part of these statutory rights. Hence she was not required to seek redemption therein. Furthermore she contended in the other case that neither of the tax deeds was valid, and that neither conveyed her interest in the land described; and upon these questions judgment of the court was sought and these alone were settled by that judgment. But the judgment definitely determined that the deeds were valid, and thereupon she sought by the present intervention to exercise a statutory right to redeem property conveyed by valid tax deeds. The right she now asserts is wholly independent of and apart from the rights asserted in the previous intervention. Were a defendant in fi. fa. to arrest a levy by illegality and be cast in a judgment holding the fi. fa. valid, he would thereafter be entitled to tender the full amount due under the fi. fa. and demand a release of the property under levy, and he would be entitled to enforce his right to have his tender accepted and his property released by appropriate legal process. The same principle was involved in McLendon v. Shumate, 128 Ga. 526 ( 57 S.E. 886), where it was held that although the plaintiff in fi. fa. was bound by the judgment finding the property not subject before his paying or tendering the amount of a prior lien, yet when he made tender after the judgment the same property became subject to his fi. fa. Therefore it must be held that if the intervenor was at the time of the present intervention the owner of the land involved, and her pleadings properly present her right to redeem, she had a right to file such pleadings, and the former judgment can not be set up as a bar to the right now claimed.
2. "Tax sales are creatures of statute. When, how, and under what circumstances they are to be made, and their effect when made, are matters depending upon the statute governing them." Bennett v. Southern Pine Co., 123 Ga. 618 ( 51 S.E. 654). The intervention in the present case seeking to redeem property sold for taxes is assailed by demurrer, and in support of the demurrer it is urged that such tender as the law requires has not been made, that the period of redemption has expired, and that the intervenor has no interest in the land. These are potent arguments, and we will consider them separately. There is no authority for redeeming property sold for taxes, except that given by statute. As relates to the tax deed held by the city, the Code, § 92-4402, authorizes redemption by the owner or other person entitled to redeem by meeting the condition there stipulated, which is "paying to the municipality the purchase-price at such sale, together with interest thereon at seven per centum per annum from the date thereof, and all municipal taxes accruing subsequent to the date of the sale." Section 92-8301, dealing with sales of real property for State, county, city, or school taxes, or special assessments, provides that the persons there authorized to redeem may do so within the time there fixed "by paying the purchaser the amount paid by said purchaser for said land, with 10 per cent. premium thereon." Thus it is seen that aside from payment of the purchase-price at the sale, and stated premiums, there is no method provided by statute for such redemption. Of course, if payment is refused by the purchaser when legally tendered, such tender would satisfy the statutory requirement of payment (Code, § 20-1105); but the tender can not be avoided by a promise to pay or an assertion in pleadings of a willingness to pay. One entitled to redeem will not be allowed to hold the purchase-money and at the same time recover the property. He can not have both. If the purchaser must surrender the one, he is entitled at the same time and without delay to receive the other.
Clower v. Fleming, 81 Ga. 247 ( 7 S.E. 278), was an action in ejectment by the owner seeking to recover land that had been sold at the same time under a tax fi. fa. and a fi. fa. on the judgment of a court; and since the plaintiff there was required to have title to support her action, the case differs from the present case in that here the intervenor is seeking in equity to obtain title; but the ruling of this court relative to tender is applicable in the present case. It was said: "Two offers to redeem were made, one attended with a strict tender, except that the tender was too small in amount; the other sufficient in amount but without a strict tender of the money, and of doubtful sufficiency in point of time. The former we have disposed of under the first head of this opinion. As to the latter, we rule that had it been a strict and proper tender, it would be difficult to treat it as reinstating Mrs. Clower in the legal title so as to enable her to recover in this mere legal action. Made in proper time and manner, it would have enabled her to support a bill, or an analogous proceeding at law to compel acceptance, and to rehabilitate her both with title and possession; but to accomplish that result she would have to make the tender continuous. Not taking that course, but bringing an action of complaint, could she thus avoid making a continuous tender? We think not. She can not keep her money and recover the land too. She must at least make a continuous offer to pay. . . Had she brought the money into court, that perhaps would have sufficed in place of the continuous offer by pleading, but one or the other was indispensable — perhaps both." It is observed that in the quoted ruling this court stated that a tender made in proper time and manner would have supported an action to compel acceptance and to recover title and possession, but that to do so "she would have to make the tender continuous."
In Allen v. Gates, 145 Ga. 652 ( 89 S.E. 821), dealing with a suit attacking the validity of a tax sale and seeking to redeem the property sold, it was held that the requirement of tender as a condition precedent to relief on either ground was the same. It was said: "An allegation that the person to whom the tender was made refused it and stated that it was unnecessary to make any further tender of any kind, as he would not surrender the property save at the end of litigation, was sufficient to show a waiver of further tender, but did not supply the deficiencies in the allegations that there had been an actual tender of amounts." It repeatedly has been held by this court that where it is sought to cancel a security deed, tender of the amount due thereunder is a prerequisite to the filing and prosecution of such a suit. Harton v. Federal Land Bank of Columbia, 187 Ga. 700 ( 2 S.E.2d 62); Georgia Baptist Orphans Home v. Moon, 192 Ga. 81 ( 14 S.E.2d 590). There is no difference in principle where it is sought to regain property sold for taxes; for in both cases the opposite party has expended his money and is entitled to a refund thereof before he is required to surrender title to the property. He is entitled to have an opportunity to accept the money and convey the property voluntarily, before processes of the courts are invoked to compel him to do that which he is required to do under the law, and perhaps would do if afforded an opportunity. The intervention in the present case fails to meet the requirement of law as to tender. It nowhere asserts that tender of any kind was made before the time the intervention was filed in court, but it admits that both the city and county are entitled to stated sums paid for the property at the tax sales, and in each case merely asserts that petitioner now tenders such amounts. Elsewhere the intervention alleges that the valuation for tax purposes, subsequently to the two tax deeds, is grossly excessive, and the court is asked to fix a fair and proper amount, whereupon the intervenor asserts that she is ready to pay taxes on such proper valuation. For the purpose of this decision it is unnecessary to deal with taxes other than those represented by the two tax deeds. The relief sought is redemption of the property from the tax sales; and no tender for this purpose having been made, the intervention was subject to demurrer.
The tax deed to the city was executed in 1935, and the intervention asserts that the tax sale was consummated at that time. Under Ga. Laws 1935, p. 466 (Ga. Code Ann. § 92-4402), the redemption period expired in 1937. No redemption having been made during the time in which redemption is authorized, the City of Atlanta acquired under the tax deed an absolute and unconditional title to the land sold. Beckham v. Lindsey, 22 Ga. App. 174 ( 95 S.E. 745). Thereupon the owner and all other parties authorized by law to redeem lost their redemption rights and ceased to have any interest in the land. The intervenor having been thus divested of all title to or interest in the land, she is not entitled under the Code, § 92-8301, to redeem from the county. In Thomas v. Claxton, 187 Ga. 393 ( 200 S.E. 788), a mother conveyed to her children the land involved, and thereafter it was sold for taxes and was redeemed by the mother. This court said: "The mother did not acquire any superior title against her children as grantee under the deeds to her by virtue of her subsequent redemption of the property from tax sales. . . Accordingly, since the mother had deeded the property to her children before her subsequent redemption of the property from the tax sales, their title was superior to that of her subsequent grantee." Compare Richardson v. Comer, 112 Ga. 103 ( 37 S.E. 116); Cooper v. Peevy, 185 Ga. 805 ( 196 S.E. 705); Crump v. McEntire, 190 Ga. 684 (2, 4) ( 10 S.E.2d 186). In the present case the City of Atlanta, after the expiration of the period of redemption, is in effect the grantee of the owner before the tax sale; and even if the intervenor should redeem from the county, such redemption would inure to the benefit of her grantee, the City of Atlanta, and would in no wise benefit the intervenor. No interest of intervenor in the redemption of the property is otherwise alleged. It follows that the intervention, failing to show any interest whatever of the intervenor in the property she sought to redeem, states no ground upon which intervenor is entitled to the relief sought; and it was error to overrule the demurrer. Union Central Life Insurance Co. v. Bank of Tignall, 182 Ga. 233 ( 185 S.E. 108). It is asserted in brief of counsel, however, that by the terms of an act of the General Assembly (Ga. L. 1937, p. 491) the redemption periods were extended, and could be terminated only by the foreclosure outlined in the act, which has not been done in the present cases. This contention can not be sustained, because the act expressly provides (sec. 3) that its provisions shall not apply to tax sales made or tax deeds executed before the approval of that act. Both deeds here involved were executed before the act, and under section 3 they are governed by the law as it existed before the 1937 act. Counsel attack the validity of section 3, on the ground that it violates stated constitutional provisions; but no such constitutional attack was made in the trial court, and it has been repeatedly held that such attacks can not be made for the first time in this court. Griggs v. State, 126 Ga. 442 (2) ( 55 S.E. 179); Griggs v. State, 130 Ga. 16 ( 60 S.E. 103); Loftin v. Southern Security Co., 162 Ga. 730 (3) ( 134 S.E. 760); Yarbrough v. Georgia Railroad Banking Co., 176 Ga. 780 ( 168 S.E. 873); Griffith v. Hapeville, 182 Ga. 333 ( 185 S.E. 522). The court erred in overruling the general demurrer to the intervention.
3. The ruling complained of in the main bill of exceptions is the judgment of March 3, 1941, overruling the demurrers to Mrs. Lowe's intervention. The only assignment of error in the cross-bill of exceptions is on that portion of the judgment excepted to in the main bill, where the trial court attempted to name all parties at interest in the suit, omitting the name of the plaintiff in the cross-bill. The portion of the order excepted to is not reviewable by cross-bill of exceptions. That part of the order must be reviewed, if indeed it is reviewable at all, by an independent bill of exceptions. Code, § 6-901; A. C. Alexander Lumber Co. v. Bagley, 184 Ga. 352 (2) ( 191 S.E. 443); Robinson v. Georgia Savings Bank Trust Co., 185 Ga. 688 (8) ( 196 S.E. 395); Andrews v. Sanders, 186 Ga. 269 (2) ( 197 S.E. 639). Under this ruling the cross-bill of exceptions can not be considered.
Judgment reversed on the main bill of exceptions; cross-bill dismissed. All the Justices concur.