McDaniel vs. Edwards. eighth interest in the land, as the property of John W. Edwards. A claim was interposed, and on the trial, the jury, under the evidence and charge of the court, found in favor of the claimant. 1. The main question argued before us, was whether the sale and conveyance by the executor discharged the land from any lien the judgment may have had upon his interest in it as legatee. No case heretofore decided by this court covers this precise question. It has been held that a sale to pay debts, by the representative of an estate, divests the lien of judgments rendered against the decedent in his lifetime: 45 Georgia Reports, 585; 46 Ibid., 389; 49 Ibid., 274. Whether a sale for distribution only would have a like effect is yet open. Even delivery to the heir in the course of administration, places land beyond the reach of a judgment subsequently rendered against the administrator upon a debt of the intestate, unless there be equitable facts on which the creditor may proceed: Jones vs. Parker, 55 Georgia Reports, 11. In Wilkinson & Wilson vs. Chew, 54 Georgia Reports, 603, the creditor of an heir or legatee whose reversionary or remainder interest in the particular property is clearly defined, was said to be entitled to proceed by levy and sale pending the life estate. In Clarke vs. Harker, 48 Georgia Reports, 596, the executor was allowed to claim, and thus prevent interference by judgment creditors of certain of the legatees, with regular administration. The opinion of the court in this last case presents some of the difficulties in the way of subjecting to levy and sale shares in detached parts of undivided estates. Doubtless further judicial elaboration, or some legislative act, will be requisite to give full development and consistency to the law of this subject. It might not be easy to tell, with absolute certainty, whether before the executor sold in the present case, his interest in this particular land as legatee was so clearly defined as to make it the subject of ordinary levy. If the land had been all the property that was unadministered, and there was no inequality among the legatees in the prior distribution, then there would seem to be no obstacle to treating him Keaton vs. Tift. as a mere co-tenant with the other legatees, and in selling his interest accordingly. But here the executor had administered the land before the levy. For that purpose he was the agent of the law. He administered under a judgment of the court of ordinary, the court clothed by law with jurisdiction over estates, testate and intestate. The purchaser bought the land as the property of the testator, against whom there was no judgment, not as the property of the legatee, the judgment debtor. The title of the purchaser, therefore, goes back behind the lien of this judgment and cuts it off. Such, we think, is the better view of the matter, and we so adjudge: Code, sections 2246, 2483; 27 Georgia Reports, 125. 2. The objection to the evidence is too general for us to deal with. The motion for new trial discloses no ground of objection, nor does the bill of exceptions or any other part of the record: 47 Georgia Reports, 99. It was not insisted in the argument before us that the judge charged the jury in a way to encroach on their functions, nor was attention called to any defect in the executor's deed. Judgment affirmed. JAMES K. P. KEATON, plaintiff in error, vs. N. & A. F. TIFT, defendants in error. 1. Where the proprietor of a farm vests in an assignee, for value, the right to let a farm and collect the rent arising out of said farm, and such assignee does let the same to a tenant under him: Held, that such an assignee may distrain for the rent. 2. Where part of property levied on is subject and part not subject under the facts, the judgment will be reversed and a new trial granted, unless the levy is dismissed in respect to that not subject. Practice in the Dougherty Superior Landlord and tenant. Distress warrant. Supreme Court. Before Judge HALL. Court. October Term, 1875. Reported in the opinion. Keaton vs. Tift. STROZER & SMITH; W. F. JONES, for plaintiff in error. D. H. POPE, for defendants. JACKSON, Judge. The Messrs. Tift sued out a distress warrant against Billingslea, and levied it upon a crib of corn containing some one hundred and nineteen bushels and nine hundred bushels of cotton seed. Keaton claimed the property levied on. Keaton had rented the land to Billingslea for the year 1874 and preceding years. Subsequently Keaton and the Tifts, between whom there had been some business transactions, settled their differences, and this land rented to Billingslea was turned over to the Tifts to control and collect the rent thereof for the year 1874, and to have an interest therein for 1875. The Tifts re-rented to Billingslea for 1874 at twelve bales of cotton for rent and the replacement of corn used by the tenant. When Keaton first rented to Billingslea, Billingslea was to return to him, Keaton, nine hundred bushels of cotton seed and three hundred bushels of corn which was on the place when he first rented in 1867. At the close of 1874 Keaton took possession of the place. Billingslea turned over to him the nine hundred bushels of cotton seed delivered and a crib of three hundred bushels of corn. The one hundred and nineteen bushels of corn levied on was not so turned over to him, but was claimed also by him. The jury found all subject, the one hundred and nineteen bushels of corn and the cotton seed. A new trial was moved for on two grounds: First, because the Tifts were not landlords, and could not distrain; and second, because Keaton had the superior right to the property, as it was returned to him as landlord pursuant to his first contract of rent. 1. We think the Tifts were, by the contract with Keaton and their subsequent renting the place with his assent, entitled to distrain. They became the landlords. It does Wayne et al. vs. The Mayor, etc., of Savannah. not lie in Keaton's mouth to deny it. He made them so by his contract for value with them. Billingslea does not dispute it. If he did, he, too, would be estopped, for he rented from them. 2. We think that the one hundred and nineteen bushels of corn was subject to the distress warrant. It had not been delivered to Keaton when levied on. This one hundred and nineteen bushels, as it was not delivered to Keaton, seems to have been left by Billingslea for the Tifts. At all events, it was subject to their claim. In regard to the cotton seed, we think otherwise. It was turned over to Keaton in compliance with Billingslea's contract with him for previous rent. Tifts had got their twelve bales of cotton and their corn, and we think the right to the cotton seed was in Keaton. Therefore we reverse the judgment and grant a new trial, unless the plaintiff will dismiss his levy on the cotton seed; in which event we affirm the judgment. The HENRY C. WAYNE, administrator, et al., plaintiffs in error, vs. THE MAYOR AND ALDERMEN OF THE CITY OF SAVANNAH, defendants in error. 1. As matter of public policy, founded on the exigencies of government, municipal corporations must have present command of their current revenues. Property holders who have paid, whether voluntarily or by coercion, illegal taxes in former years, have no right to set off (by injunction or otherwise) such payments against executions issued for the taxes of later years. 2. The remedy of injunction to restrain the collection of municipal taxes upon real estate, regularly assessed in pursuance of general ordinances to raise revenue for the current wants of the city, which ordinances are attacked for the sole reason that they do not burden all taxable property alike, is subject to the sound discretion of the chancellor; and where he has exercised his discretion by refusing the injunction, and the grounds of his judgment have a direct bearing upon nearly the entire mass of property over which the taxing power is exercised, and involve, therefore, the whole system of municipal finance, this court will not, for any reason, disturb so wise and conservative an administration of the injunction law. Wayne et al. vs. The Mayor, etc., of Savannah. Municipal corporations. Taxes. Injunction. Before Judge TOMPKINS. Chatham County. At Chambers. February 5th 1875. In November, 1875, Wayne, as administrator upon the estate of Ferrill, and others owning real estate in the city of Savannah, filed their bill against the mayor and aldermen of such city, making, in brief, the following case: Their real estate has been assessed for taxation by said corporation for the years 1874 and 1875, at the rate of two and a quarter per cent. per annum. For the years 1870 and 1871, they were assessed and taxed upon said property one and threequarters per cent., and for the years 1872 and 1873, at the rate of two per cent. These taxes were paid to the extent set forth in schedule annexed to the bill, immaterial here. The payment of this money was coerced from them under the powers vested in the defendant to fine and to issue executions, etc. For the purpose of enforcing payment of the taxes assessed for the years 1874 and 1875, the defendants have issued executions, had them levied, and have caused complainants' property to be advertised for sale. Complainants submit that all of the aforesaid taxes from the year 1870 to the year 1875, inclusive, are unconstitutional in this: that in the year 1870 complainants' real estate was taxed one and three-fourths per cent., while stocks, bonds, moneyed capital, etc., were taxed only one-fourth of one per cent., and in like manner discriminations were made during the following years, and are now made in the tax ordinance of 1875, against real estate in said city, in favor of stocks, bonds, moneyed capital, etc. They further submit that the tax ordinances for the years 1874 and 1875 are illegal for the further reason, that while every one owning household and kitchen furniture over the value of $300 00, is taxed upon said furniture, yet those owning less than $300 00 are exempted, thereby decreasing the amount of taxable property in said city, and thus increasing the rate of taxation on their real estate. |