We are satisfied the Court erred in its charge to the jury on the trial of this case, when they were instructed that lands can not be sold for taxes by authority of the city when there is personal property subject and sufficient to pay the taxes. The Act amendatory of the charter of the city, passed 18 th February, 1854, confers the power of taxation, and provides that the Clerk of the City Council shall issue execution against defaulters, which execution shall bind all the property of the defendant from the date thereof; and the marshal is authorized _ to proceed to> levy, advertise and sell in such manner as the ordinances of said city shall or may direct. By the Act of 13th December, 1859, further amending the charter, it is enacted that the Mayor a.nd Council, or a majority of them, shall have the power to levy and collect a tax • upon all and every species of property, real and personal, within the limits of the city, which, is or may be subject to taxation by the laws of this State, not exceeding fifty cents in every one hundred dollars value of said property. The 22d section of this Act forbids the city authorities to pass any ordinance, rule or regulation, contravening the laws of this State or the Constitution thereof, but as often as any doubts shall arise in the construction of this Act the same shall in all Courts of Law and Equity, and elsewhere, be construed and taken most favorably for said corporation.

But it is insisted that the marshal must make a return on th.efi.fa. of no personal property before he is authorized to levy on land, because such is the rule in case of sales under a State tax-collector’s fi.fa. ' We do not so understand the Code. By section 980 all such fi. fas. are required to be *43directed to all and singular the sheriffs and constables of this State. Section 891 declares that executions may be levied by either of the officers to whom directed, or other officer who by law may be authorized in their place; when the principal amount does not exceed '$50 00, the levy and sale must be made by a constable, and not otherwise. If the constable levies on land it must be returned to, and sold by, the sheriff of the county.

It will be observed that this section of the Code makes no distinction between real and personal property, except that the land, if levied upon, must be'sold by the sheriff, and not by the constable making • the levy. And it must be remembered that the fi.fa. is directed not to the constable alone, but to all and singular the sheriffs and constables of this State. Now, if it is the policy of this State to require the personal property which is subject, to be first exhausted, before a levy is made on land, why does not the policy extepd as well to sums over as under fifty dollars? "We see no good reason for the distinction; and if-none is made, and the. construction insisted upon is adopted, it follows that the sheriff can not levy on real estate until he has made a return of no personal property. . ( ,

Counsel for the defendant in error cites section 893 of the Code, which says, sales under tax fi. fas. shall be made under the same rules governing other judicial sales; and he insists, as a constable must make an entry of no personal property on a fi.fa. from a Justice’s Court, before he can levy on real estate, that this section makes it necessary that the same entry be made by him on a tax fi.fa. But this rule of construction proves too much, as it would also require- the sheriff to make a similar return, as the same fi.fa. is directed to him'as well as to the constable, and either may levy it, in case the amount exceeds fifty dollars, It can not be the true meaning of the statute that a constable must make the entry contended for, if the fi. fa. levied by him is less than fifty dollars, but need not do so if it exceeds that sum. We think section 893 means by the phrase “the same rules governing other judicial sales,” the rules as to advertisements, time and place of sales, etc.

*44It was also insisted that the deputy or acting marshal of the City of Griffin had no right to make the levy or sale, but that it could only be done by the chief marshal. By reference to the Ordinances of the City, in the Revised Edition of 1869, section 16, under the head of chief marshal and deputy marshal, we find that, when the chief marshal or deputy marshal, as collector, shall levy on the goods, chattels, lands or tenements of a tax-defaulter, he shall sell the same at public sale, etc. Here the authority seems to be expressly conferred upon the chief marshal or deputy marshal. Again, section 2, under the same title, declares'that it shall be the duty of the chief marshal and deputy marshal to serve all processes, executions, attachments, etc. And a fee of fifty cents is allowed for collecting executions without levy. It is very clear, therefore, that the authority is expressly given to the deputy marshal to act in such cases. But if it were not given in express terms, we think there would still be no doubt of the power of the chief marshal to discharge this duty by his deputy, and that the maxim qui faeit per alium faeit per se, is applicable.

It is further objected to this sale that the levy was excessive, that it was the duty of the marshal to have put up part of the lot at a time till the necessary sum was raised. We do not think that rule applies to such a case as this. Here the property levied upon was a city lot, not very susceptible of division, -as the building probably constituted its chief value; and it was encumbered by a mortgage, to a large proportion of its value, or it was claimed by another person, Mr. Bailey, who had a better title than the defendant from whom the tax was due. In either case, it was doubtful, as the result showed, whether it would bring more than the tax due, when sold subject to Bailey’s title, whether a fee simple or a mortgage lien.

The view we take of this sale renders it unnecessary in the opinion of the majority of the Court, that we should decide whether the conveyance to Bailey was a mortgage or a conditional sale. For myself I incline strongly to the opinion, upon the authority of Galt vs. Jackson, 9th Georgia, 151, *45and other authorities cited by the plaintiff in error, that it was a conditional sale, and not a mortgage. I admit that in some of its features it Resembled a mortgage, and that the Courts incline, in a doubtful case, to construe it as a mortgage, and not a sale. The true test is, did the relation of debtor and creditor still exist between Gullett and Bailey ? It seems to me it did not. After the time when the money was to have been'repaid by Gullett to entitle him toa re-conveyance, he gave up to Bailey the defeasance which he took at the |ime of the sale, and acknowledged himself to be Bailey’s tenant, and Bailey accepted him as such. Suppose the next day the house had been consumed by fire, and the property had been no longer worth one-half the sum which Bailey paid for it, could he have sued Gullett on the notes or debt, and have compelled him to pay the balance or the difference between the value of the lot and the amount of the original sum advanced ? I think not. It seems to me Gullett could have met him with a successful defense, .by show-' ing that the title was fully vested in him at the time the premises were destroyed, and that the relation' of landlord and tenant, and not that of debtor and creditor, existed at the time of the loss. But I will not enlarge, as we do not find it necessary to decide this point.

Judgment reversed.