1. Fairly construed, the petition does not run counter to the general rule that in order for a plaintiff to maintain an equitable petition to remove a cloud on his title, he must allege and prove possession in himself; nor was the evidence such as demanded a denial of relief on the ground that the plaintiffs were not in possession. Nor do the facts call for the application of the rule that an injunction mandatory in character will not be granted.
2. There was evidence to justify the trial court in holding that the tax sale was void by reason of an excessive levy.
3. That one of the executors succeeded in having the tax official to remit a penalty which had been added to the amount of the tax, on his promise to pay the balance, was not such conduct as would estop him from seeking a decree declaring void the levy and sale afterwards made.
4. The record showing that the complainants had offered to pay to the vendee of the purchaser at the tax sale an amount of money equal to or exceeding the amount of the taxes, with interest and costs, a formal tender being waived, this placed them in position to seek affirmative relief in a court of equity.
5. Where an owner fails to return land for taxation, there is no provision of law whereby his title can be divested by levy and sale as the property of another person under a tax execution against such other person. Nelson v. Brown, 174 Ga. 150 (162 S.E. 276), and cit.; Haden v. Atlanta, 177 Ga. 869 (171 S.E. 703), and cit.; Turner v. Hale, 188 Ga. 197 (3 S.E.2d 591).
6. The general demurrers were properly overruled, and under the evidence it was not erroneous to grant the temporary injunction.
7. That part of the petition praying for a judgment for attorney's fees should have been stricken on demurrer, since there is shown no such bad faith, or stubborn litigiousness, or such other conduct of the defendant as caused the plaintiff unnecessary trouble or expense as would serve to take the case out of the general rule in the Code, § 20-1404.
No. 13599. FEBRUARY 12, 1941. Mrs. Cora Guthman owned the property. It was not returned for taxes. She had never been known or called by the name of Mary. There was a failure to make return of the property for taxes; whereupon the City of Atlanta made an assessment in the name of "Mary" Guthman, and issued a tax execution in personam against Mary Guthman for the sum of $44.70, the amount of the fi. fa. and the costs. It was levied, and a sale of the property was made. Tax Financing Company, the purchaser, subsequently conveyed it to West. The executors of Mrs. Cora Guthman brought suit against West, alleging, in addition to what is stated above, as follows: West now claims that Tax Financing Company has foreclosed the right to redeem the property under the procedure provided for in title 92 of the Code of 1933. If it attempted any foreclosure of the right of petitioners to redeem, such procedure was void, in that it was directed against Mrs. Mary Guthman, and in that neither Mrs. Cora Guthman, nor her executors, nor her heir living in Fulton County, Georgia, were ever served with notice of foreclosure, as provided by law, nor was her heir living in the State of Illinois ever served with notice by publication; that the tax deed to the Tax Financing Company and the quitclaim deed to West constitute a cloud upon the title of petitioners to the property; that the entire realty is reasonably worth $2500; that at the time of the levy and sale, the property was, and is now, readily susceptible to subdivision and sale in two separate parcels, each of which would have had, and would now have, a value greatly in excess of the amount of the tax fi. fa. in question; that it has a frontage on Ormond Street of 40 feet, and extends back a distance of approximately 109 feet to a ten-foot alley, on which it abuts 40 feet; that the rear part of the property, for a distance of approximately 60 feet from the alley, forms a vacant space or lot, which is accessible from the alley; that the front part of the lot on which is situated the house would have had, and would now have, if sold separate and apart from the rear, a market value of at least $1500, and the rear part referred to would have had, and would now have, a market value of at least $250; that without prejudice to their rights, and without waiving any of their legal rights in the premises, and without admitting the validity of the tax deed to the Tax Financing Company and the claim of West, petitioners have nevertheless, for the purpose of settling the matter, tendered to West in *Page 571 person, before the filing of the petition, the sum of $80, which represents the amount of consideration recited in the tax deed, plus 10 per cent. per annum, and the costs and expenses of the alleged foreclosure of the tax deed, as provided for the redemption of tax deeds by the law of the State of Georgia in payment of the tax described above, but that West refused to accept that sum and still refuses to accept it; that West also waived a cash tender of the sum mentioned, and announced that he would refuse to accept any amount whatsoever less than $200; and that petitioners are continuing to tender to him any sum that may be legally due him, and are ready to do equity in the premises.
They allege that the purported fi. fa., levy and sale are all void, for the following reasons: (a) The fi. fa. was issued against Mrs. Mary Guthman and the tax deed was executed in the name of Mrs. Mary Guthman, when no such person owned or had any interest in the property, the owner thereof being Mrs. Cora Guthman. (b) There was an excessive levy by the officer who levied upon the entire parcel and improvements thereon, when the fi. fa. could have been sufficiently satisfied by a levy on a portion of the land. (c) There was an excessive levy, because the levying officer sold a piece of property valued at $2500 to satisfy a fi. fa. in the sum of $25.27. (d) The purported levy does not show by whom it was made, or upon whom it was served, as required by the city ordinance, section 1902, which was set forth. (e) Said levy was made on the property of Mrs. Mary Guthman, when the real owner was Mrs. Cora Guthman. (f) No notice of the levy was ever served upon the owner, Mrs. Cora Guthman, who was at all times, until her subsequent death, a resident of Fulton County, and no notice was served upon the tenant in possession or the owner within five days after the levy, or within five days before the sale. Petitioners contended that the alleged foreclosure of the right of the owners of the property to redeem same from the purported tax deed was void, because no notice of foreclosure was ever served on petitioners or the heirs of Mrs. Cora Guthman in persona or by publication. It was alleged that the complainants, the executors of Mrs. Cora Guthman's estate, took possession of said property and are now in possession, but that after May 23, 1940, West proceeded illegally and without authority to collect the rent on the property from the tenants residing therein, and that he threatens to take possession, *Page 572 and threatens to continue to disturb the tenant in possession to collect rent from him. The foregoing are the allegations of the original petition and some of the amendments. Other amendments filed after the demurrers of the defendant are referred to in the opinion.
The prayers were: (a) For process; (b) that the purported deed executed by Riley F. Elder as municipal revenue collector and ex-officio marshal of the City of Atlanta for and on behalf of Mrs. Mary Guthman, conveying the property to the Tax Financing Company, and the quitclaim deed from that company to West, be declared null and void, and be canceled by the court as a cloud upon petitioners' title; (c) that defendant be restrained and enjoined from attempting to take possession of the property, or from in any wise interfering with the possession of petitioners, their agents, or tenants; (d) that he be enjoined from attempting to convey or in any manner encumber the property, and from otherwise changing the status of the record title; (e) that he be restrained from communicating with tenants living on said property, or attempting to collect rents; (f) that he be required to render an accounting of the funds collected by him from the tenant; (g) that petitioners have judgment against the defendant in the sum of $1000, for the unnecessary trouble and expense, including attorney's fees, caused them by defendant.
General and special demurrers were filed by the defendant, all of which were overruled after the petition was amended. At the interlocutory hearing the plaintiffs introduced a copy of the will of Mrs. Cora Guthman and of the letters testamentary issued to petitioners; affidavits tending to show that the property was divisible as alleged, and that the levy was excessive; affidavit of the tenant to the effect that he received no notice from the Tax Financing Company or from West respecting foreclosure of any tax lien or tax deed on the property; that he was not served with any notice by the sheriff or his deputy, and none was left at his residence; that the first he knew of any claim by the Tax Finance Company or West was when West notified him that he would have to pay rent to West; that he paid rent to West for a month or two, but since the filing of this suit he has been paying rent to the petitioners. Plaintiffs introduced in evidence the letter from the Tax Financing Company to Mary Guthman, stating that it had become the purchaser *Page 573 of the property, and suggesting that she get in touch with that company, as it would have to take possession. The evidence was undisputed that Mary Guthman against whom the tax execution issued was never the owner of the property, but that the owner was Mrs. Cora Guthman. The allegations that the petitioners made the tender to West as alleged were supported by the evidence.
The defendant introduced in evidence the tax deed from the City of Atlanta to the Tax Financing Company, together with the tax execution and the various entries thereon, and a quitclaim deed from Tax Financing Company to West; also the foreclosure notice which had been given to Mary Guthman, and the various entries thereon. Defendant's witnesses disputed the contention of plaintiffs that the property was capable of division, and that the levy was excessive. Upon hearing the evidence the court enjoined the defendant as prayed, and he excepted. Nothing will be added to what is stated in the first five headnotes. Only the ruling in the seventh will be discussed. Paragraph (g) of complainants' prayer was, "That your petitioners have judgment against the defendant in the sum of $2500, and for attorneys' fees for filing this suit." This was demurred to on the ground that "nowhere in the petition are set forth facts that would warrant the recovery of attorneys' fees for the filing of the suit." Petitioners amended their petition in part, by adding thereto the following paragraphs: "24. Your petitioners aver that in attempting to foreclose the tax deed held by him against Mrs. Cora Guthman as though she were in life, when as a matter of fact said Mrs. Cora Guthman was dead, as defendant knew, or as he would have had he examined the records in the Fulton Court of Ordinary for the purpose of ascertaining the names of all persons having any right, title, or interest in said property, as required by law, defendant acted in bad faith, and by his said action has caused the petitioners unnecessary trouble and expense by forcing them to bring this action. 25. Your petitioners aver that in refusing to accept the amount tendered to him as hereinabove set out, and in refusing to give your petitioners a quitclaim deed to the property, defendant acted in bad faith in an attempt to force petitioners to pay him a sum to which he was not legally *Page 574 or otherwise entitled, and by his said action has caused your petitioners unnecessary trouble and expense in forcing them to bring this action to protect their interest and to remove defendant's claim as a cloud on their title." Plaintiffs further amended by striking paragraph (g) of the prayers, and by inserting in lieu thereof the following: (g) That your petitioners have judgment against the defendant in the sum of $1000, for the unnecessary trouble and expense, including attorney's fees, caused by defendant as hereinabove set out.
The defendant renewed his demurrers to the petition as amended, and they were overruled. That part of the petition seeking recovery of damages, which this ground of demurrer challenged, should have been stricken, unless complainants set forth facts sufficient to bring them within one of the three exceptions stated in the Code, § 20-1404, which declares that "The expenses of litigation are not generally allowed as a part of the damages; but if the defendant has acted in bad faith, or has been stubbornly litigious, or has caused the plaintiff unnecessary trouble and expense, the jury may allow them." There is no averment anywhere that West attempted to foreclose the tax deed. The allegation is. "That said Thomas B. West now claims that the Tax Financing Company has foreclosed the right to redeem the property under the procedure provided for in Title 92 of the Code of 1933." So that there is no basis for the charge that West "acted in bad faith and by his said action has caused the petitioners unnecessary trouble and expense by forcing them to bring this action," even if it could be said that mere failure to examine the records in the Fulton Court of Ordinary for the purpose of ascertaining that Mrs. Guthman was dead, and the names of all persons having any title or interest in the property, would be sufficient to indicate bad faith on anybody's part. The only other fact pleaded as a basis for the charge of bad faith was, as above pointed out, that he refused to accept the tender and refused to give petitioners a quitclaim deed to the property. These, it is said, caused petitioners unnecessary trouble and expense in forcing them to bring this action. It is not even alleged in the petition that West did not in fact believe that the city had a right to sell this property for unpaid taxes in the manner it did, nor that he did not believe that his immediate predecessor in title, the purchaser at the tax sale, did not get a good title, and that by *Page 575 pursuing the law as laid down in title 92 of the Code of 1933 the right to redeem no longer existed.
In O'Neal v. Spivey, 167 Ga. 176, 180 (145 S.E. 71), where an award by the jury of attorneys' fees was upheld, they were claimed, so it is stated in the opinion, by reason of a stubborn and litigious spirit shown by the defendant in connection with the transaction. They are not asked for here on any such ground. In that case, however, it was pointed out in the opinion that the petition alleged "details and circumstances from which a jury would be authorized to infer a stubborn and litigious spirit." As observed by Mr. Justice Lamar, in TradersInsurance Co. v. Mann, 118 Ga. 381, 384 (45 S.E. 426), this court in Mosely v. Sanders, 76 Ga. 293, did not have before it a case involving bad faith, the holding there being that the sheriff was liable for expenses incurred as the result of his wrongful refusal to accept an affidavit of illegality, even though he acted in good faith. It is to be noted that the Code section quoted above contains the clause, "or has caused the plaintiff unnecessary trouble and expense." (Italics ours.) It may be assumed that every lawsuit causes the plaintiff some trouble and expense, but this is not what the statute has in mind. One of the provisions of the bill of rights contained in the constitution of this State declares that "No person shall be deprived of the right to prosecute or defend his own cause in any of the courts of this State, in person, by attorney, or both." Code, § 2-104. This is a privilege granted to the defendant as well as the plaintiff. Traders Insurance Co. v. Mann, supra. "Where there is a bona fide controversy for the tribunals to settle, and the parties can not adjust it amicably, there should be no burdening of one with the counsel fees of the other, unless there has been wanton or excessive indulgence in litigation."Tift v. Towns, 63 Ga. 237, 242. See also Ga. R. Bkg.Co. v. Gardner, 118 Ga. 723 (45 S.E. 600.)
In overruling the general demurrer, and all the special demurrers save in one instance, the trial court was correct. Nor was there any abuse of discretion in granting the interlocutory injunction. The court erred, however, in not sustaining that portion of the demurrer which related to the plaintiffs' claim for attorney's fees. Let the costs incurred in suing out the writ of error be taxed against the defendants in error.
Judgment reversed in part and affirmed in part. All theJustices concur. *Page 576