The owner or the holder of any equity, lien, or interest in or on property returned or assessed with other property for taxes shall be allowed to pay the taxes assessed against any one or more pieces of such property: (1) when listed separately by the owner or assessor on the tax return or digest, according to the valuation shown by the return or assessment; or (2) when not listed separately on the tax return or digest by the owner or assessor, by paying the proportionate part of the taxes represented by such property according to the valuation in the return or assessment; that is to say, such proportionate part of all of the taxes represented by the return or assessment as the value of the separate piece or pieces of property upon which payment is being made bears to all of the property in such return or assessment. The officials charged with the collection of taxes for this state or for any subdivision of this state including, but not limited to, municipalities, counties, and all other subdivisions of this state, and any transferee of a tax lien shall be required to accept payment of the taxes when tender is made as provided in this Code section, shall issue a receipt showing the payment, and shall execute a release of the property from the lien for taxes. The official or transferee accepting the payment and releasing the property shall be paid a fee of 50› for issuing the receipt and release.
(Ga. L. 1931, p. 122, § 1; Ga. L. 1933, p. 50, § 1; Code 1933, § 92-5712; Code 1933, § 91A-1030, enacted by Ga. L. 1978, p. 309, § 2.)
Law reviews.- For comment on Brown v. Nash, 216 Ga. 303, 116 S.E.2d 227 (1960), see 12 Mercer L. Rev. 425 (1961).
JUDICIAL DECISIONS
Holder of security interest.
- O.C.G.A. § 48-5-25 applies when partial payment of past due ad valorem taxes are made by the holder of a security interest in the property upon which the tax is paid. Roberts v. Ford Motor Credit Co., 160 Ga. App. 827, 288 S.E.2d 238 (1982).
An action for declaratory judgment is the appropriate remedy to enforce the rights of the party holding the security interest. Roberts v. Ford Motor Credit Co., 160 Ga. App. 827, 288 S.E.2d 238 (1982).
Property under levy.
- There is nothing in O.C.G.A. § 48-5-25 which requires a distinction to be made between property under levy but prior to sale and property "returned or assessed with other property." Roberts v. Ford Motor Credit Co., 160 Ga. App. 827, 288 S.E.2d 238 (1982).
Word "property" in this statute means both real and personal property. Aldridge v. Federal Land Bank, 203 Ga. 285, 46 S.E.2d 578 (1948).
Requirement that both real and personal taxes be paid for release.
- When the purchaser, at the time the lien becomes effective and at the time one purchases the property, is not the owner or the holder of any equity, lien, or interest in the real property purchased, and when one purchases the property with knowledge of the existence of a tax lien against the property, covering both real and personal property taxes, the purchaser obtains no better title than the purchaser's grantor had since the purchaser's grantor could not have obtained a release of the real property without payment of both real and personal property taxes. Brown v. Nash, 216 Ga. 303, 116 S.E.2d 227 (1960).
Effect of payment by cotenant of all taxes on jointly held property.
- Since joint property is liable for all taxes, payment of the taxes by one cotenant is payment for all. Bank of Tupelo v. Collier, 191 Ga. 852, 14 S.E.2d 59 (1941).
Subrogation and contribution rights of cotenant who pays taxes on common property.
- When one tenant in common, in order to protect one's interest, pays a mortgage on the common property, one is entitled to be subrogated to the rights of the mortgagee and to enforce the mortgage as against one's cotenants, to the extent of their liability to contribute to the satisfaction of the mortgage. This principle of subrogation is applicable in favor of a cotenant who pays taxes on common property. Bank of Tupelo v. Collier, 191 Ga. 852, 14 S.E.2d 59 (1941).
Availability of remedy when property levied upon after payment.
- When the purchaser, under former Code 1933, § 92-5712 (see now O.C.G.A. § 48-5-25), was entitled to pay the pro rata part of taxes assessed against the property the purchaser purchased subsequent to the issuance of tax fieri facias, and when these fieri facias were levied upon the property purchased, had the purchaser had an adequate remedy at law by a claim under former Code 1933, § 92-7801 (see now O.C.G.A. § 48-3-24). Bibb County v. Mortgage Bond Co., 183 Ga. 402, 188 S.E. 698 (1936).
Cited in ITT Bus. Serv. Corp. v. Roberts, 184 Ga. App. 764, 362 S.E.2d 496 (1987).
OPINIONS OF THE ATTORNEY GENERAL
Right of security deed holder to release upon payment of taxes.
- Commissioner is required to release the last piece of property which secures a tax liability upon the security deed holder's tender of payment for the taxes owed on the real property even though unpaid personal property tax obligations remain outstanding and will become unsecured. 1987 Op. Att'y Gen. No. U87-2.
Section 48-5-26 not applicable to security deed holders.
- O.C.G.A. § 48-5-26 only appears to supplement the general provisions of O.C.G.A. § 48-5-25 for the limited scope and purpose of addressing a narrow question of the rights that owners and transferees of real property have to obtain a release by paying taxes on selected parcels of property between the tax lien date and the date when the taxes actually become due; the law does not apply in cases involving security deed holders. 1987 Op. Att'y Gen. No. U87-2.
Word "property" as used in this statute embraces both realty and personalty. 1950-51 Op. Att'y Gen. p. 382.
Effect of this statute.- In effect, this statute compels the holder of the lien to resort to other property involved or owned by the person against whom the tax fieri facias issued, and upon which taxes have not been paid, for satisfaction of the remainder of the fieri facias, or lien. 1945-47 Op. Att'y Gen. p. 551.
When payment may be made.- Holder of the equity, interest, or lien has the right to pay a proportionate part of the taxes on the property in question, together with a proportionate part of the cost which had accrued up until the date of payment at any time prior to the sale under an execution of property which has been advertised for sale. 1960-61 Op. Att'y Gen. p. 476.
Statute permits a proportionate payment of taxes after fieri facias has been issued. 1958-59 Op. Att'y Gen. p. 377.
Owner of property may not pay portion of tax and thus obtain release of portion of property covered by lien. 1960-61 Op. Att'y Gen. p. 529.
RESEARCH REFERENCES
Am. Jur. 2d.
- 72 Am. Jur. 2d, State and Local Taxation, §§ 718, 719.
C.J.S.- 85 C.J.S., Taxation, § 1002 et seq.
ALR.
- Taking mortgage in name of, or assigning it to, third person to evade taxation, as affecting its validity and enforceability, 21 A.L.R. 396.
Priority over existing lien of statutory lien upon real property for personal property taxes, 47 A.L.R. 378; 65 A.L.R. 677.
Period covered by lessee's, sublessee's, or assignee's covenant to pay taxes or assessments, 97 A.L.R. 931.
Right of mortgagee or other lienor to acquire and hold tax title in his own right as against persons owning other interest or liens upon property, 140 A.L.R. 294.
Liability of mortgagor or his grantee to mortgagee for loss or depreciation in value of mortgage security as result of failure to pay taxes, 154 A.L.R. 614.
Tenant's interest in respect of building or other structure erected by him as separate unit for property tax apart from land, 154 A.L.R. 1309.
Superiority of special or local assessment lien over earlier private lien or mortgage, where statute creating such special lien is silent as to superiority, 75 A.L.R.2d 1121.