By the Court.
Lumpkin, J.
delivering the opinion.
Was the Court right in ruling in this case, that’the sale was’void on account of its excessiveness ?
We think so most clearly. Here were two tenements actually occupied by different persons, and erected for that purpose, having no necessary connection with each other, and each of which is proven to have been worth thousands of dollars, both offered for sale together to satisfy a tax fi. fa. of less than one hundred dollars. *
By the Tax Act of 1804, no more property could be sold than was necessary to satisfy the tax fi.fa. and cost. If two lots of land were sold together, the sale was void; and parcels of the same tract had to be separately offered until a sufficient sum was raised to pay the amount. And to the same effect is the 14lh Sec. of the charter of the city of Atlanta. {Pamph. of Charter and Ordinances, p. 9.) Under such enactments, which are reasonable and right, how can a sale be justified of the character of this ?
But it is argued that the Marshal is the sole judge of this matter; and that his Honor Judge Bull, had no right to instruct the jury that the facts in this case did not justify the judgment of that officer.
We dissent wholly from this position. True the levying officer must judge, but still he must be guided and governed by the law as Courts are in the exercise of their discretion, and if his discretion be grossly abused, as the facts testified to by himself show it was in this case, it must be controlled and his acts set aside by those having paramount and ultimate authority to decide in this matter.
Was the Court further right, in holding that the tax lien in thfs case did not override the mortgage lien ? We concur fully with the Circuit Judge that it did not.
The city charter declares that the tax execution shall only-bind the property of the defendant from the date thereof! {Pamphlet of Act of Incorporation and Ordinances, p. &.) Here the mortgage lien was created in the Fall of 1855; the tax was for the year 1856; property was given in, in April, 1856 ; and the execution is dated September, 1856.
We concur with the learned counsel for the plaintiff in error, that ail property liable to be taxed shall pay taxes; and we further concur with him, that in order to ascertain who is liable we must look to the person who owns the title; and we concede further, that the title in-this case was in the mortgagor, until it should be divested by foreclosure and sale. He can ask no further admissions. What then was the law applicable to the facts of the case ? The tax was assessed on this city property. The execution to enforce its payment issued against the mortgagor. All this was right. He had not parted with the title. Nor had he been divested of it by judicial sale. But what then ? Herein consists the fallacy of the whole argument. In 1855, before this tax accrued, the owner had created a mortgage lien on the lot. It could only be sold then subject to this lien, or as we usually say, whether technically accurate under our laws or not, it makes no difference, and means practically precisely the same thing, the equity of redemption only could be sold; and if in this way, the amount due could not be raised, the mortgagee under the act of 1804, was liable for and could be forced to pay the balance. All this whole doctrine free from any perplexity, will be found in the 15th Sec. of that act. Cobb, 1050. It says, “All deeds of gift, conveyances, mortgages, sales and assignments of goods, lands, tenements, and chattels of any kind of any person whatsoever, made with an intention to avoid paying the aforesaid taxes, are hereby deemed and declared null and void; and in case any person who has mortgaged estate, real or personal, shall neglect or refuse to pay the tax for the same, the mortgagee shall be liable to pay the same. Provided that no such sale for taxes, under this act, shall tend to affect the State’s title to any property mortgaged or secured thereto.”
The proviso, of course, has nothing to do with the subject. I thought it best however to quote the entire section.
Is it not obvious that the owner of property, real or personal, may bona fide sell, mortgage or give his estate, before the lien of the State attaches thereon ? and what difference can. it make to the State, whether the grantor or grantee, the donor or donee, the mortgagor or mortgagee, pays the tax? It is all the same to the public. It is manifest, that whatever confusion exists upon this subject, there is none in the law itself. It is harmonious and just.
The error in this matter consists in having sold the whole property, when the equity of redemption, or the property subject to the mortgage incumbrance, was all, that could have been sold under the tax execution against James T. Doane, and that, as the testimony shows, was sufficient to have paid the debt many times over. What connection there is between James T. Doane, the mortgagor, and John A. Doane, the purchaser of this valuable property, and claimant in this case, the record does not disclose.
That the public revenue must be collected, all agree. But the power to collect taxes, even in favor of the sovereign State, much less these municipal corporations, is not so omnipotent as counsel imagines. The authority of the government is always tempered with wisdom and justice, as well as mercy. Hence the provision in the Act of 1840, (Cobb, 1072,) giving to the citizen the right to claim property not subject to a tax collector’s execution.
I havé discussed this question as though the grant of power to this corporation to levy and collect taxes, elevated it to an equality of right with the State itself. I am very far, however, from entertaining such an opinion. On the contrary, I hold that they are amenable to the law for the abuse of their power; and subject to judicial control, the same as individuals, except where exceptions and immunities have been conferred by the sovereign power that brought them into being.
Judgment affirmed.