1. A deed properly executed by a sheriff pursuant to a sale under a tax execution, even if void for any reason, is such color of title as will support prescription by seven-years' adverse possession.
2. The judgment under review was demanded by the pleadings and the evidence, and the assignments of error do not require the grant of a new trial.
No. 15601. NOVEMBER 14, 1946. REHEARING DENIED DECEMBER 2, 1946. On July 11, 1944, Mrs. Mattie L. Smith filed her equitable petition against Jefferson County, School District No. 2 of such county, T. H. Rivers, tax collector, and James Hubbard, sheriff, both of Jefferson County. She alleged: On June 4, 1928, she was the *Page 675 owner of two adjoining, described lots in the City of Wadley (Jefferson County) containing one and one-half acres, of the value of $4000. On that date a deputy sheriff of Jefferson County, without any effort to subdivide or sell a portion of the one-and-one-half-acre tract, levied a tax execution thereon against M. B. Salter, issued by the tax collector of Jefferson County, in the sum of $22.20, for State, county and school taxes for the year 1927. The tax execution, entry of levy, and disbursement of funds received at the sale, as shown by the entry of the execution, are set out in full. The levy, as alleged, was grossly excessive, fraudulent, and void. On July 9, 1928, D.C. Thomas, sheriff, executed a deed to Jefferson County. The deed, which is set out in full, recites: the levy of an execution issued against M. B. Smith for 1927 State, county, and school taxes, by M. A. Evans, tax collector; advertisement in the News Farmer, the newspaper in the county in which sheriff's advertisements are published; the sheriff's proceeding on July 9, the same being a day for the sale of the property according to law; the exposure of the property for sale before the courthouse door, and its being knocked off to Jefferson County for $40.
The plaintiff alleged that the deed to Jefferson County is void because: (a) The levy was excessive and void; (b) the execution issued against M. B. Salter, who was never the owner of the land; (c) the plaintiff was a non-resident, and the property should have been advertised for ninety days, under the Code, § 92-8103; (d) the notice required by the Code, §§ 92-6212 and 92-6213, had not been given her; (e) the advertisement did not set forth the amount of the tax assessed; (f) the property was advertised as the property of M. B. Smith; (g) the plaintiff's taxes on the property were paid; (h) the property could have been rented out and taxes, if due, paid from the rents; (i) the execution failed to state that the property was unreturned; (j) the property was not pointed out by the plaintiff; (k) no notice of a tax assessment for the years 1927 and 1928 was ever given the plaintiff; (1) the taking of the plaintiff's property under such tax deed was without due process of law and in violation of the Constitution of the United States (Code, §§ 1-805, 1-815).
The plaintiff charged: That a warrant on the treasurer for costs in connection with the sale has not been drawn as required. On January 1, 1930, a deed by the Commissioners of Roads and Revenues *Page 676 of Jefferson County, purporting to convey the lands to School District No. 2 of the county, was made and later recorded. "On the first Wednesday in November, 1929, when petitioner's husband learned of a purported sale of her land by said sheriff, he, with Judge W. L. Phillips, an attorney, appeared before said board of commissioners and offered to pay and tendered all taxes, interest, costs or other lawful charges against said one-and-one-half-acre tract, and to redeem said land, which payment they refused to accept." The deed to School District No. 2 is void because: (a) The county had no title to convey; (b) no resolution was passed by the board authorizing the execution of the deed; (c) no commissioner was appointed to sell the land. That tract was vacant land, and immediately after her discovery of the two deeds she, through her attorney, had a fence erected around the land. Her attorney was arrested and the fence torn down. The deeds are a cloud on the plaintiff's title. The defendant trustees, by telling prospective lessees that they owned the lands, have prevented her from leasing them since January 1, 1930, causing her to lose $100 per annum since that time. In addition to loss of rental, the trustees have continuously trespassed upon her lands, and she is entitled to damages, including punitive damages, of $5000, certain expenses of $650, and attorney's fees of $490. The plaintiff has paid all taxes assessed against her; she offers and has offered to do equity, and renews such offer to pay all legitimate taxes due as fixed by the court. She prayed that the defendants be enjoined and restrained from changing the status of the property, that the deeds to Jefferson County and the School District be declared void and canceled, for process, and for the recovery of damages alleged.
The defendants filed their answer, denying the material allegations of the petition, but admitting the execution of the deed to the Trustees of School District No. 2, as alleged, and that certain named persons were officers of the defendant county and district. The defendants filed an amendment to their answer, alleging that the school district, in order to protect its title, had to pay to the City of Wadley a paving assessment of $836.53, bearing interest from July 1, 1927 at 7 percent per annum. The plaintiff demurred to the amendment. Her demurrer was overruled, she excepted pendente lite, and error is assigned in the bill of exceptions on the pendente lite exceptions. *Page 677
On the trial of the case, after evidence had been introduced, the court directed a verdict for the defendants. The plaintiff filed a motion for new trial, which, after amendment, was overruled. Error is assigned on the judgment overruling the motion for new trial as amended.
The brief of the oral and documentary evidence covers 57 pages. Much of it was not relevant to the issues made. The evidence showed that the plaintiffs, Mrs. Smith, had acquired the full title to one of the lots (included in the deed made by the sheriff as a result of the tax sale) in 1920, and that she had acquired title to the other lot in 1925. She never, at any time, returned either lot for taxation, and never received any notice of assessment by the tax receiver. She heard a rumor in October, 1929, that certain persons at Wadley had obtained her lots for $22.20 taxes. She had been renting the lots for $75 annual rental, and made a contract for $100 for the year 1930, but the lessee advised her by letter that he could not take possession according to the agreement because officials of the county advised him that the property was owned by the county.
The tax deed made by the sheriff to Jefferson County was introduced in evidence, as was the fi. fa. described in the plaintiff's petition. The tax digest was introduced, showing that the plaintiff did not make a tax return for the year 1927. The defendants introduced the digest, showing that M. B. Smith made tax returns beginning with the year 1920 and continuing through the year 1934. Smith's returns in the 83rd District (City of Wadley) for the years 1926 through 1929 were for $600, being the amount of the assessment against the land claimed by the plaintiff. A copy of the official advertisement in the News Farmer (official organ of Jefferson County) showed that the advertisement appeared in four issues immediately preceding the first Tuesday in July (July 2). The deed from Jefferson County to School District No. 2 was introduced.
There was much evidence for the defendant school district showing that the lots had been graded and used as a playground for the school children after it was acquired by the district. The plaintiff testified that she did not know of the sale of her lots until August, 1942. This testimony was contrary to the allegations of her petition that she had notice from a person to whom she had leased the lots in 1930, and the further allegation that her husband learned *Page 678 of the sale and went before the county board of commissioners to redeem the property in 1929. Both the plaintiff and her husband contended that her taxes for the year 1927 were paid to D.C. Thomas, the sheriff, by check. Records and testimony were introduced by the defendant to show that there was no record of Thomas (since deceased) having received such a check. Smith's testimony that the check was exhibited to the county commissioners was disputed by persons who were members of the board at the time of the meeting.
The defendants offered in evidence minutes of the county commissioner's meeting in January, 1930, showing a sale of the Smith property to School District No. 2, and also offered evidence of the assessment made against M. B. Smith for paving done by the City of Wadley, and the acts authorizing such paving. The defendants introduced in evidence a judgment rendered in the District Court of the United States on October 11, 1943, in an action by the plaintiff against the same defendants and involving the same property, wherein it is recited in part as follows: "It appears that Mr. M. B. Smith, the husband of the petitioner, and her agent in handling this matter from the beginning, saw some lawyers about recovering the property from the authorities of Jefferson County more than ten or twelve years ago, and that one of these lawyers informed him that he had waited too late and was barred by the statute of limitations." 1. "Where land is sold under an execution based upon a void judgment, no title passes. But the purchaser at such sale holding the sheriff's deed has color of title; and if in good faith he enters into possession and holds the land adversely for seven years, he has a good title by prescription." Rogers v. Smith, 146 Ga. 373 (91 S.E. 414). The same rule applies to a tax sale by a sheriff. In the present case the tax collector testified that the records in his office showed that an execution for the year 1927 issued against M. B. Smith, and that the record contained a notation that the property had been sold to the county. The plaintiff contends that the execution accompanying the tax deed on the deed records was issued against M. B. Salter. There was evidence which would have authorized *Page 679 the finding that the name on the execution was erroneously entered at the time of recording. But even should it be assumed that the plaintiff's contention was correct, and that such execution amounted to no execution at all, it was held inPeeples v. Wilson, 140 Ga. 610 (79 S.E. 466), that: "A sheriff's deed to land, executed to one who purchases at a tax sale, though not accompanied by the tax fi. fa. under which the land was sold, is good as color of title." (See also authorities cited.) And in Wood v. Wilson, 145 Ga. 259 (88 S.E. 980), with reference to a sale by a sheriff under a tax execution, it was held: "Though the sheriff's deed be void as title, it is good as color of title, and prescription by seven-years' adverse possession of the land may be predicated upon it, if the defendant's possession did not originate in fraud."
It appears without dispute that the county board of commissioners of roads and revenues, after the time had passed for the plaintiff to redeem the property, conveyed it to the school district in 1930. Was the possession by the school authorities adverse to the plaintiff for the more than fifteen years after the execution of such deed? The allegations of the plaintiff's petition conclusively establish such possession. She alleges in one instance that "defendant trustees telling prospective lessees that they were the owners of said property . . prevented petitioner from leasing same since Jan. 1, 1930, thereby causing her a loss of over $100 per annum since that time;" and in another paragraph she alleges that "the trustees . . have wilfully and wantonly and continuously trespassed upon said land of petitioner, and been in the possession thereof, except a short time in 1934, a short time in 1937, and a short time in 1942, when plaintiff was in possession of same, since January 1, 1930," for which she asks damages. Since the plaintiff does not undertake to state any fact or circumstance to show what her short possession in 1934, 1937, and 1942 consisted of, such allegation is a mere conclusion, and does not overcome her allegation that the trustees have been continuously in possession since 1930. Under the averments of her petition, the only time that she did anything to evidence possession was in 1942, when she attempted to have a fence constructed around the lots, and then she alleges that the person in charge of such work was arrested and the fence torn down at the instance of claimants to the property. Certainly, under the allegations of the petition, the plaintiff fails to show any acts of *Page 680 possession since 1930. The undisputed testimony for the defendants shows improvement and grading of the property, and use by the teachers, children, and school authorities since 1930.
"Actual possession of lands is evidenced by inclosure, cultivation, or any use and occupation thereof which is so notorious as to attract the attention of every adverse claimant, and so exclusive as to prevent actual occupation by another." Code, § 85-403. Under the allegations of the petition, the plaintiff's attention was attracted to the use of the lands by the school authorities in 1930, and her only attempt to evidence possession was resisted with sufficient force to prevent her occupation of the lands, even temporarily. It follows that the school authorities at least acquired title by prescription under color of title, unless possession was acquired by fraud. "`The fraud meant by the Code, in declaring that possession in order to be the foundation of prescription must not originate therein, is actual, moral fraud, a wrongful act, and not an act which the law denominates a fraud regardless of the bona fides of the parties.'" Connell v. Culpepper, 111 Ga. 805 (35 S.E. 667). Did the possession of the school authorities originate in fraud? No such wrongful act as to the school authorities is alleged, nor is there any evidence of any such acts in the record.
By holding that the school authorities acquired title by prescription under color of title prior to the filing of the present action, we do not intend to infer that the deed made by the sheriff to Jefferson County is necessarily void. Under decisions of this court in State v. Hancock, 79 Ga. 801 (5 S.E. 248), Barnes v. Lewis, 98 Ga. 559 (25 S.E. 589), andDawson v. Dawson, 106 Ga. 45 (32 S.E. 29), a contrary ruling would appear to be authorized. The assumption that the sheriff's deed was void, however, is the most favorable position possible to the plaintiff, and under it she can not recover, the defendants having acquired title by prescription under their deed.
2. The exceptions pendente lite, which assign error on the allowance of an amendment by the defendants, pleading a paving assessment against M. B. Smith due the City of Wadley, and alleged to have been paid by the defendants to protect their title, do not show any reversible error. The title which the defendant school district acquired under their deed and by prescription was in no way dependent on such paving assessment, if due and paid *Page 681 as alleged. The court did not err in allowing the amendment, which might have been germane as a claim for equitable setoff, had the plaintiff recovered in her action for the property.
The Code, § 32-909, providing that county boards of education shall have power to control the property of school districts, necessarily means that such districts may receive property for such county boards of education. The contention that local trustees could not be the owners of the property in question is therefore without merit.
Grounds of the motion for new trial as amended, contending that the court should have charged the jury certain principles of law, and that it was error to direct a verdict for the defendants for certain reasons assigned, are controlled, adversely to the plaintiff's contentions, by the rulings heretofore stated sustaining such verdict.
Judgment affirmed. All the Justices concur.