(dissenting):
I respectfully dissent. The majority places primary emphasis upon the first phrase in the statute — “when the real property is divisible” — rather than the statute as a whole and what I perceive to be the primary intent of the statute.
All real property is technically divisible, regardless of size or configuration. The concept of the statute, taken as a whole, however, is not controlled by whether or not the real property is divisible, but whether it can be divided so that the sale of only a portion will generate enough funds to pay the taxes. It must be noted that every tract of land seized for nonpayment of taxes should have an intrinsic value greater than the taxes due. No property is taxed at 100% of its value. It has long been the law of this state that it is not what the land is really worth, but what it would bring at a public sale that is the determinative factor. Wilson v. Cantrell, 40 S.C. 114, 18 S.E. 517 (1893). In that case, the supreme court ruled that even though the statute in question authorized the seizure and sale of only so much of the taxpayer’s land as may be necessary to pay the taxes assessed, the sale of the entire 150-acre tract without an effort to divide it provided no basis for the invalidation of the sale in view of the fact that the sale only brought enough to pay the taxes and costs without any excess.
This is one of those rare tax sale cases where it is conceded that all of the technical notice requirements have been complied with and the only conceivable ground for challenging the sale is the issue before us. Here, the larger of the two tracts, which would be more capable of division, was the first to sell. It brought less than the taxes due on it, necessitating the sale of the second, smaller, tract. I am not persuaded that under these circumstances the tax collector should have divided the *472property to sell it in smaller portions, in view of the undeniable fact that sold as a whole it failed to generate sufficient sums “to satisfy the payment of the taxes, assessments, penalties, and costs.” S.C.Code Ann. § 12-51-40(d).
The majority opinion contends that if the larger tract had been partitioned and sold for a sufficient sum to pay the taxes on both properties, the smaller tract never would have been sold. While that is unquestionably accurate, it is not a valid argument favoring divisibility because it proceeds on the illogical assumption that a portion of the larger tract would have sold at public sale for more than the entire tract. Since the entire tract failed to bring a sufficient sum to satisfy the taxes due, there is little if any reason to believe that selling it piecemeal would generate more funds.
I fear that by requiring a determination, in advance, of the divisibility of every piece of property sold for taxes at public auction, we are placing an unreasonable burden upon the various tax collectors in our state. Every sale, whether it generates less than enough to satisfy taxes due or more than enough, will be subject to challenge if the divisibility determination is not made on a case by case basis prior to the sale. I would affirm.