Craig et al. vs. Cosby, sheriff, et el.

ment against the defendants for the damage done petitioners.

The answers of the defendants denied all the material charges of the petition as to fraud, etc., and set forth the circumstances to show their want of intention to do any wrong. The prayer of the petition was denied, and the complainants excepted.

T. M. PEEPLES and N. L. HUTCHINS, Jr., for plaintiffs

in error.

S. J. WINN, C. II. BRAND and HARRISON & PEEPLES, contra.

SIMMONS, Justice.

George P. and Robert Craig filed their petition in the superior court of Gwinnett county, and prayed an order enjoining the sheriff from levying a certain fi. fa. described in this petition. Nearly every point in the petition was made in the affidavit of illegality which was brought to this court at the last term, the case being reported in 80 Ga. 709, under the name of Craig et al. vs. Herring & Turner, for use. These points were then decided adversely to these plaintiffs in error, and as to the present case are res adjudicata. As to the new points made in the petition, about the sheriff's failing to file the bond, etc., they could have been made in the affidavit of illegality. As they could have been made and were not made, it is too late to make them now in this proceeding.

As to the charges of fraud made in the petition against Brand and McCandless, the new parties, it is sufficient to say that they were denied by Brand and McCandless, and as to this point we will not control the discretion of the trial judge, who refused to grant the injunction.

Millen vs. Howell.

For a discussion and decision of all the material points made in this petition, see Craig vs. Herring, supra, and authorities there cited.

Judgment affirmed.

MILLEN US. HOWELL.

The third and fourth sections of the act of 1880 (acts 1880-81, p. 45, code, 2874b,) apply only to unreturned wild lands; but when a lot of wild land had been returned by the agent of the owner, and the execution for taxes issued against such agent and the land was sold under the execution, the owner has only one year in which to redeem.

December 12, 1888.

Tax. Wild land. Redemption. Redemption. Before Judge FAIN. Murray superior court. August term, 1888.

Reported in the decision.

E. W. COLEMAN, by brief, for plaintiffs.

R. J. MCCAMY, for defendant.

SIMMONS, Justice.

M. B. Millen, for himself and as administrator de bonis non with the will annexed of Mary P. Harris, tiled his bill against E. S. Howell. He alleged that, in his own right and as such administrator, he was the owner of a certain lot of wild land, describing it; that the sheriff of Murray county, in which county the land lay, sold the land, under a fi. fa. for State and county taxes for 1885 against M. A. Bell as agent for Harris & Millen, on April 6, 1886, to E. S Howell for sixty cents. or some such sum; that the bid and costs with interest up to filing the bill amount to $5.50, and said bid and costs had been tendered Howell by complainant for the

Millen vs. Howell.

purpose of redeeming the land, but the tender was refused. The complainant renews in his bill, filed within two years of the sale, the tender of $5.50. The lot is valuable for farming and mineral uses and worth hundreds or even thousands of dollars. He prays that the sale be set aside; that Howell be compelled to accept the tender, execute a deed of release, etc.

On the trial, plaintiff showed title in himself and as administrator, as alleged. Defendants admitted sale by the sheriff as alleged, and that defendant bought the land at said sale for sixty cents. Plaintiff proved the tender to defendant after one year and within two years from the sale, and that defendant refused to accept the tender. Plaintiff showed that the land was given in for taxes for 1885 as wild land, and it was admitted that it was so given in by M. A. Bell, agent as aforesaid.

Plaintiff closed, and defendant moved to dismiss the bill, because the tender was not made within one year after the sale, and because secs. 3 and 4 of the act of 1880 (acts of 1880-81, p. 45,) were unconstitutional as containing subject-matter not provided for in its caption. The motion was sustained on both grounds, and the bill dismissed. To this decision plaintiff excepted.

We think the court was right in dismissing this petition, under the facts as they appear in this record. It appears from the record that this land was returned by the agent of Millen for taxes, in the county of Murray. Whenever lands are returned for taxes by the owner or his agent, and the taxes are not paid, it is the duty of the tax-collector to issue his execution against the owner of the lands for the taxes, and to sell the same. When they are thus returned, and are sold for the non-payment of taxes, the owner, under the code, §898, has one year in which to redeem them. If wild lands are unreturned, they are to be double-taxed, as other property unre

Millen vs. Stines et al.

turned, and if the taxes are not paid, execution is to be issued against the lands by the tax-collector, and they are to be sold, and the owner of the lands then has two years in which to redeem them; and this is the difference where wild land is returned by the owner and where it is not returned by the owner. The third and fourth sections of the act of 1880 apply only to unreturned wild lands. Acts 1880-1, p. 45; code, §874 (b).

In this case, the record discloses that while this was a lot of wild land, it was returned by the agent of the owner, and the execution for taxes was issued against the agent of the owner, and the land sold under that execution. The land having been returned for taxes and sold for the non-payment thereof, the owner had only one year in which to redeem, and when he failed to offer to redeem within the year, the court was right in dismissing his petition.

Judgment affirmed.

MILLEN US. STINES et al.

Where one bought land in good faith, and received from one who represented himself as agent of the owners of the land, a bond for titles with the signatures of such owners thereto by such person as agent, such bond, though a forgery, will constitute good color of title; and the grantee of the party purchasing, having in good faith been in possession of the land, under such color of title, for seven years, had a good title by prescription. Simmons vs. Lane, 25 Ga. 178, cited and distinguished.

(a) In the present case, the plaintiff admitted that the pretended agent signed the bond in question, and proved that no authority to sign the bond had been given to the pretended agent, thus supplying the lack of proof on the part of defendant to show the authority of the agent, or to show that the bond was a forgery.

December 12, 1888.

Verdict. Charge of court.

Color of title. Forgery.

Millen vs. Stines et al.

Evidence. Before Judge FAIN. Murray superior court. August term, 1888.

Reported in the decision.

E. W. COLEMAN, for plaintiff.

R. J. MCCAMY, for defendants.

SIMMONS, Justice.

M. B. Millen, for himself and as administrator de bonis non with the will annexed of Mary P. Harris, brought complaint for a certain lot of land against Nelson Stines and Jane Stines. Defendants pleaded the general issue. Upon the trial, the plaintiff proved title in himself and L. F. Harris, and showed that L. F. Harris died in 1861, leaving Mary P. Harris as his widow and sole heir, and that plaintiff was the administrator de bonis non, etc. of said Mary P. He also showed that no authority was given, either by L. F. Harris or himself, to J. B. Fain or E. Fain to sell the land or make a deed or bond for title thereto.

Defendants introduced a bond for titles, dated October 16th, 1860, purporting to be executed by L. F. Harris and M. B. Millen, by their agent, J. B. Fain, to F. B. Worley, conditioned to make titles to Worley to the land in dispute, upon payment by Worley of two certain notes. The bond does not recite a power of attorney to Fain. It is signed "L. F. Harris, M. B. Millen, by our agent, J. B. Fain," and witnessed by E. Fain, and is a sealed instrument. The execution of the bond by J.B. Fain was admitted. Indorsed on the bond is a written transfer of the same by various parties, as legatees of F. B. Worley, deceased, to Nelson Stines, dated October 30th, 1865.