When property which has not actually been returned by anyone is assessed for taxes, the tax collector or tax commissioner shall issue an execution against the property as soon as it is assessed for the amount due and costs. The sheriff shall advertise the property for sale in the newspaper in which sheriff's sales are advertised once a week for four weeks before the day of sale. If the taxes are not paid by the day of the sale, the property shall be sold, but only if renting or hiring the property will not bring the requisite amount. Surplus from a sale after the payment of the taxes and costs shall be paid over to the county governing authority as a part of the educational fund, together with a statement of the property and account of sales, subject to the claim of the true owner within four years.
(Orig. Code 1863, § 819; Code 1868, § 899; Code 1873, § 897; Code 1882, § 897; Civil Code 1895, § 908; Civil Code 1910, § 1168; Code 1933, § 92-8103; Code 1933, § 91A-402, enacted by Ga. L. 1978, p. 309, § 2; Ga. L. 1984, p. 660, § 1.)
Law reviews.- For annual survey on real property, see 69 Mercer L. Rev. 251 (2017). For comment on Bell v. Summerlin, 188 Ga. 648, 4 S.E.2d 831 (1939), see 2 Ga. B. J. 54 (1940).
JUDICIAL DECISIONS
When section inapplicable.
- Statute is, by the statute's express terms, inapplicable to tax sales by a sheriff when the property is returned for taxes by the defendant in execution, and when the fieri facias is not against the specific property levied upon, but against the whole property of the defendant named therein. Lumpkin v. Cureton, 119 Ga. 64, 45 S.E. 729 (1903).
What execution must show.
- When the tax collector seeks to sell land which is unreturned, the execution should not only show that the land has been assessed for taxes, has been unreturned, but that the owner is unknown; for, in order to authorize the issuance of an execution for the collection of taxes in rem, it is necessary to show that the owner thereof is unknown. Leonard v. Pilkinton, 99 Ga. 738, 27 S.E. 753 (1896).
Effect of misdescription as to state of improvement of land.
- As the tax collector, whether unreturned land be wild or improved, has power to issue execution against the land for taxes, it would seem that a sale is not void because of a misdescription of the land as wild when in fact the land was improved. Gardner v. Donaldson, 80 Ga. 71, 7 S.E. 163 (1887).
No authority to issue execution in rem when owner in possession.
- Tax collector has no authority of law to issue a tax execution against land in rem if its owner is in possession thereof at the time when it becomes the officer's duty to make a return for the owner. Norris v. Coley, 100 Ga. 547, 28 S.E. 222 (1897).
Effect of tax deed obtained under in rem proceedings.- If tax deeds represent in rem assessments, levies, and sales, a purchaser under such deed or deeds acquires a good title as against the whole world. Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977).
When execution against life tenant deemed in rem.- Purchaser at a sale under a tax execution in personam against a life tenant acquires only the life estate but when (a) the life tenant is in possession, (b) the whole property is levied upon, and (c) execution embraces only the taxes upon the specific property, the purchaser acquires title to the fee, and the whole property, including the remainder estate, as well as the life estate, passes. Pannell v. Continental Can Co., 554 F.2d 216 (5th Cir. 1977).
Misapplication of surplus.
- It may be that the persons having charge of the disbursement of the educational fund might maintain an action against the ordinary (now county governing authority) for a misapplication of the surplus, if not barred. Summers v. Christian, 72 Ga. 193 (1883).
OPINIONS OF THE ATTORNEY GENERALTax executions in rem are issuable only if property is unreturned and owner is unknown. 1972 Op. Att'y Gen. No. U72-80.
RESEARCH REFERENCES
C.J.S.
- 85 C.J.S., Taxation, § 1221 et seq.
ALR.
- Failure of advertisement in judicial proceeding for sale of land for delinquent taxes or foreclosure of tax lien, to describe lands affected, as contrary to due process of law or other constitutional objection, 107 A.L.R. 285.
Sale of property at tax sale for more or less than the amount of taxes, penalties, and costs, as affecting its validity, 147 A.L.R. 1141.
Constitutionality of statutes authorizing tax sale or resale for less than the amount of the taxes due, 155 A.L.R. 1177.
What constitutes "execution" of tax deed beginning or ending period for redemption from tax sale, 166 A.L.R. 853.