
    21352.
    SMITH et al. v. CITY OF EAST ELLIJAY et al.
    
    Argued September 11, 1961
    Decided October 5, 1961
    Rehearing denied October 24,1961.
    
      Robert K. Ballew, for plaintiffs in error.
    
      P. T. McCutchen, Avary Dimmock, Jr., contra.
   Candler, Justice.

In the instant case the plaintiffs sought to enjoin the defendants from selling their property under executions issued against them by the defendant city for 1959 taxes claimed to be due it. The allegations of the petition affirmatively show that the plaintiffs owned the property involved on January 1, 1959, and did not return it to the defendant city for taxes for that year; and since it was subject to ad valorem taxes for such year under the provisions of the city’s existing charter of 1941 (Ga. L. 1941, p. 1367), and there is no allegation in the petition that they have paid or offered to pay the city any amount as the taxes due for that year, they are for such failure in no position to apply to a court of equity for the relief they seek. Code § 37-104; Holloway v. DeVane, 212 Ga. 182 (91 SE2d 350), and citations. Hence, the court did not err, as the plaintiffs contend, in dismissing their petition on general demurrer.

Judgment affirmed.

All the Justices concur.  