Moultrie v. Wright
Moultrie v. Wright
Opinion of the Court
In 1966 appellant Moultrie acquired title by deed to real property designated as Lots 1, 2, 3 and 4, Block 13, East Savannah, Meyer Ward, Savannah, Chatham County. He fenced the yard, erected a small structure on the property and stored plumbing supplies there. In 1975, Lots 3 and 4 were sold to Chatham County at a tax sale for 1974 and prior years’ taxes. The deed to Chatham County, executed by the Chatham County tax commissioner, was recorded in the county deed records. In April 1986, the property was sold as surplus to Ronald McIntosh by quitclaim deed. In November 1985, a document apparently intended as a notice of the bar of redemption was filed in the office of the Clerk of the Superior Court of Chatham County.
Following a bench trial, the trial court entered an order finding that there appeared to be no evidence of record in the office of the Clerk of the Superior Court of Chatham County that the notice of redemption was ever served on appellant.
1. Appellant contends that the trial court erred in concluding that the county acquired fee simple title to the property, notwithstanding the failure of the county to notify appellant of the foreclosure of his right to redeem as required by OCGA § 48-4-45. The trial court found that the county’s title had ripened by prescription. We need not address appellant’s argument that this finding was error in the absence of any evidence the county had ever taken physical possession of the property because we find that appellant’s attempt to redeem this property is time barred.
It is well established that the General Assembly may constitutionally limit the duration of the right to bring an action on a claim. See, e.g., Love v. Whirlpool Corp., 264 Ga. 701 (1) (449 SE2d 602) (1994); Craven v. Lowndes County Hosp. Auth., 263 Ga. 657 (1) (437 SE2d 308) (1993). Similarly, in the interest of the certainty of title and the free alienability of property, the General Assembly determined that the obligation to afford notice of the right to redeem should be limited in time and that the right to redeem may be foreclosed by the passage of time. In other words, the General Assembly adopted a statute of repose. In 1949, Ga. L. 1937, pp. 491-496 (dealing with redemption after a tax sale) was amended by adding new sections 2-A and 2-B. Ga. L. 1949, p. 1132, codified as Code Ann. § 92-8315. The first sentence of new section 2-A provided that nothing contained in the prior law should prevent title under a tax deed from ripening by prescription seven years after the date of the execution of the deed. The second sentence of section 2-A declared that any tax deed executed at a valid sale held by the State or any subdivision
While appellant had the absolute right to redeem the property for 12 months following the sale in 1975, OCGA § 48-4-40 (1), the evidence is uncontroverted that appellant failed to exercise that right. For the following six years, the county could not have foreclosed appellant’s right to redeem the property without notice of the bar of redemption. OCGA § 48-4-40 (2). However, the evidence is uncontroverted that the county took no action regarding the property during those six years and that appellant did not redeem the property. Upon the expiration of the seven-year period in OCGA § 48-4-48, the county’s title was no longer subject to defeasance through redemption. Any failure to provide notice of a bar of redemption during those six years is not relevant to the resolution of this case. Patterson v. Florida Realty &c. Corp., 212 Ga. 440 (1) (93 SE2d 571) (1956). Moreover, we find no merit to appellant’s argument that his continued possession, adverse to the title of the county, has vested fee simple title in him.
We affirm the trial court’s conclusion that the fee simple title vested absolutely in the county and that, as a result, appellee acquired such title.
2. Appellant also enumerates as error the trial court’s conclusion that because he had abandoned the personal property located on the
Judgment affirmed.
See OCGA § 48-4-45. Defendants in fi. fa. have a right to pay the amount required to redeem their property pursuant to OCGA § 48-4-40 by payment of the redemption price as calculated under OCGA § 48-4-42. The right to redeem may be exercised at any time within 12 months from the date of the sale, OCGA § 48-4-40 (1); after 12 months the right to redeem may be exercised until that right is foreclosed by the giving of notice provided for in OCGA § 48-4-45 or until that right is foreclosed by the passage of time. OCGA § 48-4-40 (2). See Wallace v. President Street, 263 Ga. 239 (1) (430 SE2d 1) (1993).
The record in this case contains a photocopy of a notice of redemption which shows on its face that it was filed for record in the Office of the Clerk of the Superior Court of Chat-ham County on November 20, 1985.
OCGA § 48-4-48 was amended in 1989 by Ga. L. 1989, p. 1391. That amendment is not applicable to this case as the rights of the tax deed grantee (in this case, the county) in the property had fully vested prior to the effective date of the amendment. See Bullard v. Holman, 184 Ga. 788, 792 (193 SE 586) (1937).
Appellant has not challenged the validity of the tax sale.
As of the valid 1975 tax sale to the county, appellant had no color of title and adverse possession will not rim against a county as to property owned by it whether for governmental or proprietary purposes. Grand Lodge v. Thomasville, 226 Ga. 4 (3) (c) (172 SE2d 612) (1970).
Concurring Opinion
concurring specially.
In Division 1 of its opinion, the majority holds that it need not address the trial court’s finding that title ripened by prescription because, “under the law in effect as of the expiration of seven years from the execution of the deed . . . , fee simple title vested absolutely in the county. . . .” In my opinion, Patterson v. Florida Realty &c. Corp., 212 Ga. 440, 443 (3) (93 SE2d 571) (1956) mandates this holding and, therefore, I concur in the majority’s judgment of affirmance. However, I am not convinced that Patterson was rightly decided or that this result was intended by the General Assembly when it enacted Ga. L. 1949, pp. 1132, 1133, § 2-A.
Although the purchaser at a tax sale receives a deed to the property, this tax deed does not vest in the purchaser absolute title to the property. Whitaker Acres v. Schrenk, 170 Ga. App. 238, 240 (2) (316 SE2d 537) (1984). The “title” that the purchaser acquires is subordinate to the right of the defendant in fi. fa. to redeem the property, “and until the expiration of the period which the law fixes in which [the defendant in fi. fa.] might exercise this right [his] title as owner [is] not divested.” Morrison v. Whiteside, 116 Ga. 459, 462 (42 SE 729) (1902).
Under Patterson, the defendant in fi. fa. would lose his right of redemption by the mere passage of a seven-year period. However, this construction of Section 2-A fails to give effect to the entirety of the language contained in that statutory provision. By its terms, Section 2-A provided for the ripening of title under a tax deed by prescription after a seven-year period. It is a fundamental rule of construction that all of the words of a statute are to be given due weight and meaning. Boyles v. Steine, 224 Ga. 392, 395 (162 SE2d 324) (1968). Therefore, the phrase “by prescription” cannot be ignored.
Title by prescription is defined as “the right to property which a possessor acquires by reason of the continuance of his possession for
The contrary holding in Patterson appears to be based exclusively upon the second sentence of Section 2-A, which does not specifically mention prescription. However, Section 2-A is captioned as “Title under tax deed to ripen by prescription.” “The title or caption of the act ... , while no part thereof, may always be examined by the court when the act is doubtful, for the purpose of finding the legislative intent thereof. . . .” Moore v. Robinson, 206 Ga. 27, 40 (6) (55 SE2d 711) (1949). Furthermore, both the first and third sentences of section 2-A specifically refer to title by prescription. In construing the statute “so as to give effect to the legislative intent a mere segment of the statute should not be lifted out of context and construed without consideration of all the other parts of the statute. [Cit.]” City of Jesup v. Bennett, 226 Ga. 606, 609 (2) (176 SE2d 81) (1970). Therefore, in my opinion, the second sentence of section 2-A also envisions title by prescription and review of Patterson reveals that this Court did not fully consider whether prescription had to be shown.
I also note that subsequent to the relevant time period in this case, the General Assembly has further amended the statute. OCGA § 48-4-48 now clearly provides for prescription as the only basis for the ripening of title under a tax deed in the absence of notice of foreclosure of the right of redemption. Ga. L. 1989, p. 1391, § 3.
If the 1989 amendment were applicable here, Moultrie would not have lost his right of redemption by the mere passage of a seven-year period. It is undisputed that neither the county nor its successors in interest were ever in possession of the property after the sale, since Moultrie remained in possession thereafter. Accordingly, title based on the tax deed would not have ripened by prescription as required by OCGA § 48-4-48 (a).
I am authorized to state that Justice Thompson joins in this special concurrence.
Reference
- Cited By
- 13 cases
- Status
- Published