Johnson, as the transferee of certain wild land fi. fas., brought a rule against the sheriff of Terrell county, requiring him to show cause why he should ' not pay over to him the money in his hands arising from the sale of certain described wild lands for taxes. Upon the hearing of the rule the court decided that the transfer of th o fi.fas. to the plaintiff in the rule was made without authority of law, and was therefore void, and discharged the rule, whereupon the plaintiff excepted.

It appears from the evidence in the record that the tax ii. fas. were issued by W. L. Goldsmith, comptroller-gen*120eral of the state, against certain described wild lots of land for the taxes due thereon, and that the tax due the state on said wild lands was paid by said Johnson to the comptroller-general, who thereupon transferred said fi.fas. to him after the tax due to the state had been paid, and the question is whether the comptroller-gener’al had any lawful authority to do so. The general rule is that when an officer performs an official act it must be affirmatively shown that he had the lawful authority to do that act, and this is especially so in regard to the execution of the tax laws of the state. After the most careful examination, we have been unable to find any law which authorized the comptroller-general to transfer tax fi. fas. issued against wild lands, after the tax due thereon to the state has been paid to him by any person, and therefore we affirm the judgment of the court below discharging the rule against the sheriff.

Let the judgment of the court below be affirmed.

concurring.

As to whether the transfer by the comptroller-general to the plaintiff in error was valid or not, is a question on which I do not and need not, for the purposes of this ease, express an opinion. It was not as thoroughly argued at the bar as so difficult and important a question ought to be. The general lien law of 1873 provides for tax liens, as well as many other liens, and then declares that “ all liens provided for by this act may be assigned by writing.” Nor is it necessary to decide now whether a public officer can use a process to collect money, and then retain the money on account of an alleged defect in his authority to raise it. See 56 Ga., 290 ; 8 Gr’l’f R. 334. Though the comptroller-general was made a party to the rule in the court below, he did not except to the judgment. So far as Johnson, the plaintiff in error, is concerned, the judgment discharging the rule against the sheriff was, on the facts contained in the record, correct, for the following reasons :

1. The transferee of a fi.fa. against specific property is *121not entitled to the surplus produced by an official sale of the property, over and above the amount of they?, fa. and costs, but such surplus belongs to the owner of the property.

2. When two or more y?, fas. are proceeding inrem, each against different specific property, such as a lot of land, money produced by a sale under one of they?, fas. cannot be applied to pay off any of the others. One lot of wild land assessed by the comptroller-general, is not chargeable with the taxes or costs due on another.

3. Where the comptroller-general has issued a fi. fa. for taxes against certain land as wild, the sheriff ought not to levy and sell, if the fact be that the land is not wild but improved.

On these grounds I concur in the judgment of affirmance.