Tidwell vs. Burkett. prove the value at the time of the conversion and not afterwards, and prove the value of the hire. If he elects to take the highest value of the property at any time. between the conversion and the trial, and goes into the proof of the value after the conversion and up to the time of the trial, then he is not entitled to hire or to interest. In this case, the court charged that he was not only entitled to the highest value of the property from the time of its conversion up to the trial, but also to the hire; which we think was error. See Tuller vs. Carter, 59 Ga. 395; Woods vs. McCall, 67 Ga. 506; Ezzard vs. Frick & Co., 76 Ga. 512. Judgment reversed. TIDWELL vs. BURKETT. Where a note, which had been given by Tidwell to Burkett, and which recited that it was given for the purchase money of a certain mule and that the mule was to remain the property of Burkett until paid for, had been transferred by Burkett to third parties, and was in their hands when Burkett brought his action of trover for the mule against Tidwell, and at the time Burkett obtained verdict for the same, such verdict was unwarranted by the facts. The bringing of the action was equivalent to a rescission of the whole contract, so far as the note was concerned, and Burkett had no right to recover the value of the mule from Tidwell, before he had delivered up the note. LOFTON & MOORE, by M. G. BAYNE, for plaintiff in error. Tidwell vs. Burkett. J. C. HOWLAND, by J. H. HALL, contra. BLANDFORD, Justice. This is a strange case, and was strangely tried and decided. It appears that Tidwell bought a mule from one Hicks, giving him in exchange another mule, and his note for the difference in value, $22.50. Tidwell afterwards requested Burkett to pay this note for him, which Burkett did; Tidwell, according to Burkett's testimony, authorizing Hicks to make Burkett a bill of sale to the mule. Tidwell, desiring to trade this mule to his father in exchange for another, agreed with Burkett that the mule received in the exchange should take the place of the mule bought from Hicks. In settlement of his indebtedness to Burkett, Tidwell gave Burkett his note for $161.90, reciting therein that it was given for the purchase money of this mule, which should remain the property of Burkett until the note should be paid. It appears from the testimony that the true consideration of this note was an open account of sixty or seventy dollars due by Tidwell to Burkett, and the amount of the note for $20.50 which Burkett had paid Hicks for Tidwell. This note from Tidwell to Burkett was transferred by the latter to Nussbaum & Co. as collateral security. Burkett afterwards sued Tidwell in bail trover to recover the mule mentioned in the note; and a recovery was had. 1. We think this recovery was wrong. The note had been transferred to Nussbaum & Co., and was in their hands at the time this action was brought and at the time the judgment was rendered; and we think the bringing of this action by Burkett to recover the mule was equivalent to a rescission of the whole contract, so far as the note was concerned; that he had no right to Gross et al. vs. Taylor. recover the value of the mule from Tidwell before he had delivered up the note. There was nothing said in this case as to usury in the note, although it appears to have been given for almost twice the amount of indebtedness. We think the verdict was unwarranted by the facts of the case; and we reverse the judgment of the court below in refusing to grant a new trial. Judgment reversed. GROSS et al. rs. TAYLOR. All property must pay taxes, and parties interested must see that they are paid, in order to protect such reversionary or other interest as they may have therein. But where there is a general assessment of taxes against all the property of a person, and execution therefor is levied on a particular lot of land which was included in the general return of his property, the purchaser at the tax sale got no better title than the defendant in execution himself had. Had the taxes been assessed against the particular lot of land and execution issued therefor, the purchaser at a sale thereunder would have gotten a good title as against the world. April 27, 1888. Tax. Title. Before Judge HINES. Scriven superior court. November term, 1887. Alexander Kemp died testate, leaving eight children. He bequeathed to his son, R. W. Kemp, the use and control of the land in dispute during his life, and provided that after his death it should go to his children and to the issue of such of his children as might then be dead. On arriving at majority, fifteen years after his father's death, R. W. Kemp took possession of the land. There was no executor at the time, but there was a temporary administrator, who made no objection. After this taking of possession, said Kemp gave in the land for taxa Gross et al. vs. Taylor. tion, along with other land, as all his land, being 1,000 acres. While he was in possession, the land in dispute was levied on for his taxes, was pointed out by him and was regularly sold for its full value to defendant in error, the tax fi. fa. satisfied, and the balance of the proceeds paid to Kemp. He died without having married. The children of one of his sisters (who died before him and before the commencement of this suit) brought complaint for the land against the defendant. At the time of the trial, there was no executor of the estate of Alexander Kemp, but the temporary administrator consented in writing, after suit brought, that the plaintiff's might sue. He never gave in the land for taxation, and he knew of the sale at the time it was made and never redeemed the property. Said tax execution was for $16.00 and costs, and the land was sold for $400.00. The defendant pleaded not guilty, and there was a verdict in his favor. Plaintiffs moved for a new trial on the following grounds: (1)-(3) The verdict was contrary to law, evidence and the charge of the court. (4) Because the court erred in the following charge: If the jury find from the evidence that R. W. Kemp was in possession of the land sued for, and it was assessed for taxes in the year for which the tax execution against R. W. Kemp was issued for said taxes, and the execution was levied on said land and it was sold for said taxes, and that defendant was the purchaser at said sale, and the land was not redeemed within twelve months from date of sale, then the defendant got a good title to the land, and said sale divested the title of plaintiffs and every one else, and the verdict should be for the defendant. The motion was overruled, and the plaintiffs excepted. Gross et al. vs. Taylor. HOBBY & MATHEWS, by HARRISON & PEEPLES, for plaintiffs. DELL & WADE, by brief, for defendant. BLANDFORD, Justice. Under the facts of this case, we think the court erred in holding that the purchaser at the tax sale acquired a good title as against everybody. We do not think the purchaser got anything more than the interest of R. W. Kemp. Had the taxes been assessed against this particular land, instead of against all the property of Kemp, and execution issued therefor and the same been levied upon and sold thereunder, the purchaser would have gotten a good title as against the whole world. All property must pay taxes, and parties interested must see that they are paid, in order to protect such reversionary or other interest as they may have therein. But where there was a general assessment of taxes against all the property of Kemp, and execution therefor was levied upon this particular lot of land, which was included in the general return of his property, we do not think the purchaser at the tax sale got any better title than Kemp himself had. It was not a proceeding by the tax-collector in rem to collect taxes from this particular land, but a proceeding in personam against Kemp. This was a tax execution for $16 only, and Kemp had an abundance of property outside of this land from which to pay it. The land was sold at the tax sale for $400, and the remainder of the $400, after paying this execution for $16, was paid over to Kemp; and this in itself suggests some collusion between Kemp and the purchaser at the sale. We are aware of no decision of this court which contravenes the law as we have stated it; and what has |