The action from which the appeal was taken was not one for the refund of taxes paid under protest, but was brought to restrain the defendants from making title to real property sold at an invalid tax sale. There can be no doubt that the lien for taxes for the year 1933, and years prior thereto, had expired when the sale was made; and there is no doubt that on that account the sale was invalid, and inasmuch as the sale included the taxes for the years 1934 and 1935, as to which the Circuit Judge held and this Court concurred in the finding that there had been no legal levy upon taking possession of the premises, the sale as to these years also was invalid.
It does not appear from the record that the Acts of 1937 (Act March 22, 1937, 40 St. at Large, p. 138), was called to the attention of the Circuit Judge, nor was it passed upon by him. It is now called to the attention of this Court.
It appears that that Act, by amendment to Section 2846 of the Code of Laws, 1932, provides that the provisions of that section relating to the payment of taxes under protest shall apply to the taxes due the cities and towns, as well *Page 40 as the State and county taxes. By those provisions, the person paying taxes under protest is empowered to bring action to recover such payment.
It is hereby held that the opinion filed December 6, 1938, in so far as it relates to the taxes for 1934 and 1935 paid by the respondent, is controlling only in this case; and is not to be understood to foreclose to the City of Spartanburg any rights it has under the Act of 1937 in the collection of taxes due it, since the passage of that Act.
Let this order be reported along with the opinion.
This renders it unnecessary for a rehearing of the case.
MR. CHIEF JUSTICE STABLER and MESSRS. JUSTICES BONHAM, BAKER and FISHBURNE concur.
MR. JUSTICE CARTER did not participate because of illness.