dissenting. The original drainage act of 1911 (Acts 1911, p. 108), which merely created a uniform method of *814creating drainage districts and provided the machinery for the operation of the law, enacted rules by which the amount of assessments upon the landowners of the drainage district should be determined. No landowner was made liable to an assessment if he was able to pay his proportionate part of the expense of draining the drainage district in cash. The assessments which entailed liability upon the landowner in the drainage district were confined to those for whose benefit it was necessary to issue bonds, and the payment of the bonds was guaranteed by the liability of these landowners, and none other. Consequently, provision was made for the contingency in which a landowner whose liability had been imposed by the issuance of bonds might default in one of the annual payments which was designed to extinguish the bonded indebtedness, and it was provided that in such a contingency the assessment originally entered upon the rolls should have the force of a judgment; that the tax-collector should issue a fi. fa., the lien of which should rank next to the lien of the State and county for their taxes, against the property drained. There was no provision whatever in the act of 1911 as to when the fi. fa. should be issued. By the act of 1918 (Acts 1918, p. 147) to supply this defect it was enacted that “The tax-collector shall, not later than January 1st of each year, make a report of all unpaid assessments due for the preceding year, . . and shall at the same time issue'his execution to enforce collection of the same, which shall proceed as ordinary executions for State and county taxes.” The original act said they should be collected in the same manner, by the same officers, as State and county taxes are collected; but it did not fix a date on or before which the execution must be issued or enforced, and the positive direction that the fi. fa. when issued and enforced “shall proceed as ordinary executions for State and county taxes” was not embodied in the original act. This legislation subjected levies and sales of real estate subject to drainage taxes to the same rules, in every respect, as had previously been applicable to the collection of State and county taxes. In the present case the execution was not issued prior to or on January 1, as required by the drainage law and was not issued until April 8, 1922, instead of on January 1, 1922, as required by law. If a tax for drainage as required by the amendment of 1918, supra, “shall proceed as ordinary executions for State and county taxes,” not only did the fi. fa. levied in this *815case fail to be issued as required by tbe act specifically dealing with the subject of executions, but it did not proceed under the rules applicable to State and county taxes when it was issued after the death of Miss Emma Manley. Whatever may have been the rulings of this court as to the issuance of a fi. fa. against a deceased person, founded upon a judgment obtained against the deceased before his death, in ordinary civil actions between individuals, a different rule has been established by this court as to a tax fi. fa. It has uniformly been held, in every case where taxes were involved, that a tax fi. fa. issued against the owner of real estate after his death was void, and that a sale of property under such fi. fa., though it had formerly been the property of the deceased person, was also void and a deed executed by the sheriff in pursuance of the sale conveyed no title to the purchaser.
The cases cited by the majority, to sustain the proposition that a fi. fa. issued upon a judgment obtained before the death of the defendant in fi. fa. in such a civil action may have execution issued thereon upon which a levy and-sale may be had, present a different ease from one in which the sovereign, dealing with its subjects in the exercise of its prerogative to collect means for the support of the government, proceeds to sell the property of a citizen whose default may be due entirely to lingering illness and death. In any event, all laws in derogation of the rights of a citizen are to be strictly construed; and in my opinion the amendment of 1918 not only specifically requires that the fi. fa. be issued by the tax-collector at the same time “as he collects State and county taxes,” and in the same manner and by the same officials as State and county taxes are collected, as required by the act of 1911, but goes further and classifies it with the well-settled method of proceeding in the collection of State and county taxes against a -dead person subject thereto, by enacting that the proceeding of issuing the fi. fa. shall be the same and controlled by the rules governing the issuance of “executions for State and county taxes.” There is but one question presented by this writ of error. Can a fi. fa. to collect an assessment of drainage tax as provided for in the act of 1911 be issued against a deceased owner of the land, or proceed against such deceased owner after the death of the owner of the land subject to the drainage tax? I am of the opinion that the trial judge correctly ruled in holding that a fi. fa. could not have been legally *816issued against Miss Emma Manley after her death, and that consequently the levy and sale thereunder were nugatory, with the result that the deed under which the plaintiff relied for recovery was void and inadmissible as a muniment of title. Section 34 of the drainage act of 1911 provides this drainage assessment “shall constitute the first and paramount lien, second only to State and county taxes, upon the lands assessed for the payment of said bonds and the interest thereon as they become due, and shall be collected in the same manner by the same officers as State and county taxes are collectedBy the amendment of 1918 it is enacted that “The tax-collector shall, not later than January 1st of each year, make a report of all unpaid assessments due for the preceding year to the board of drainage commissioners, and shall at the same time issue his execution to enforce collection of the same, which shall proceed hs ordinary executions for State and county taxes.” In Campbell v. Board of Drainage Commissioners, 156 Ga. 64 (118 S. E. 720), and Goolsby v. Board of Drainage Commissioners, 156 Ga. 213 (6b) (119 S. E. 644), we held that an execution issued for the collection of drainage tax is of the same nature as a tax execution, and that for that reason an affidavit of illegality is not the proper remedy to contest the legality of such an execution. See Webb v. Newsome, 138 Ga. 342, 345 (75 S. E. 106). In McVey v. McWilliams, 157 Ga. 220, 226 (supra), in dealing with a sale following the levy of a drainage assessment, we held that “A sale to satisfy any of the several assessments shall be conducted by the same rules and proceed in the same manner as sales to satisfy State and county taxes.” What then is the rule applicable to the issuance of executions, levy, and sale of property sought to be subjected to State and county tax fi. fa. ?
Section 1018 of the Civil Code of 1910, which was not originally of legislative origin, declares: “Taxes are to be charged against the owner of property if known, and against the specific property itself if the owner is not known. Life-tenants, and those who own and enjoy the property, are chargeable with the tax thereon. Hence, while the public may treat property as belonging either to the maker or the holder of a bond for titles, when the latter is in possession, yet as between the parties the one receiving the rents or enjoying the use is liable for the tax.” The latter part of this section, referring to life-tenants and others, who may own and enjoy property, was *817taken from the decision of this court in National Bank of Athens v. Danforth, 80 Ga. 55 (7 S. E. 546), written by Mr. Chief Justice Bleckley, but has no application in the case at bar. The part with which we are now concerned (for it directs against whom the tax execution may be issued in each particular case, by declaring that taxes' are to be charged against the owner of property if known and against the specific property itself if the owner is not known) states a rule which was taken from the decision of Chief Justice Bleckley in Burns v. Lewis, 86 Ga. 591, 602 (supra), couched in the following language: “In this State, the universal rule, unless some statute can be shown to vary it in particular instances, is that taxes are to be charged upon the owners of property. Owners, therefore, have an interest in being properly designated in executions which issue for the collection of taxes upon their property, or, if they can not be designated with reasonable certainty, that the property shall be pointed out in the executions as authority for seizing it irrespective of ownership, or as the property of some particular person. . . The owner of property must be a natural person, a corporation, or a quasi person or entity, such as a partnership. The law recognizes no other owners of property.” In the present case it can not be said that either a corporation or a partnership is referred to, and the record shows that there was no such natural person in life at the time of the issuance of the tax execution or the levy or the sale of the property, as Emma Manley. In the .case of Miller v. Brooks, 120 Ga. 232 (supra) the execution issued against “the estate of A. J. Miller,” and it was held that on the face of the assessment and execution the name of no owner appeared and that the fi. fas. in question were void. Mr. Justice Cobb in that case cited a large number of authorities from various jurisdictions of the Union, a majority of which support the ruling of Chief Justice Bleckley which I have quoted, and concluded by expressing the unanimous opinion of this court that under the provisions of section 778 of the Code (section 1018 of Code of 1910), as well as under the general principles of law applicable to such cases, the execution was void because it was not issued against any person. It is true that in the present ease it does not appear but that the original assessment was made against Miss Emma Manley, but this is immaterial, because, regardless of the prior assessment, the tax-collector is required by the act of 1911 to issue the execution against *818the owner of the property, and at the time the execution in this ease was issued Miss Emma Manley was dead and she had disposed of her ownership of the property by will. In Ayer v. Chapman, 146 Ga. 608 (supra), it was held that “Tax fi. fas. against the estate of 0. and against 0., issued after her death, were void, and a sale of the property under such fi. fas., though it had formerly been the property of 0., was also void, and a deed executed by the sherifi in pursuance of the sale could not operate to convey title to the purchaser.” The opinion of the court was delivered by Mr. Justice Beck; and while Atkinson and Hill, JJ., dissented from the judgment of reversal, their dissent was based upon a ground other than that dealt with in the headnote just quoted.
Mr. Justice Hill concurs in this dissenting opinion.