
    Thomas v. Lester, guardian, et al.
    
   Hines, J.

1. An assignment of error upon a judgment sustaining a demurrer to the petition, in this language, “to which ruling plaintiff excepted, excepts now, and assigns the same as error, on the ground that the petition as amended did set forth a cause of action,” is sufficient to present the real issue; and the writ of error will not be dismissed because the assignment of error is insufficient. Civil Code, § 6183; Anderson v. Newton, 123 Ga. 512 (51 S. E. 508); Fitzpatrick v. Alford, 134 Ga. 529 (68 S. E. 102). There is nothing to the contrary of what we now hold, in Lyndon v. Georgia Railway & Electric Co., 129 Ga. 353 (58 S. E. 1047) ; Holland v. Holland, 147 Ga. 32 (92 S. E. 538) ; Rogers v. Rogers, 150 Ga. 181 (103 S. E. 156). In the two cases last cited, bald exceptions were taken to the judgment complained of, without assigning any reason. In the instant case a reason is given why the judgment is erroneous.

2. A tax fi. fa. can be transferred to a person who pays it off only by an officer whose duty it is to enforce it. Civil Code, § 1145. A constable can not levy a tax fi. fa., when the principal amount exceeds one hundred dollars. Civil Code, § 1165. It follows that the transfer by the constable of the tax fi. fa. in this case, which exceeded in amount one hundred dollars, was void, and the same could not be enforced by the transferee by levy and sale of the property of the defendant in the tax fi. fa. Johnson v. Christie, 64 Ga. 117; Hill v. Georgia State B. & L. Association, 120 Ga. 472 (47 S. E. 897) ; Thompson v. Adams, 157 Ga. 42 (120 S. E. 529); Cook v. Powell, 160 Ga. 831 (12) (129 S. E. 546).

3. Where security given for the loan of money which is used to pay off an encumbrance turns out to be void, although the person taking it expected to get good security, he will be subrogated to the rights of the holder of the lien which the money advanced is used to pay; and in such case the person advancing the money can not be regarded as a volunteer, there being no intervening equity to prevent subrogation. This rule applies where the security fails because of partial or total want of title in the person giving it, or where it fails of its purpose because of some defect in its execution, or because of want of authority or capacity in the person executing it. The doctrine of subrogation rests upon principles of equity and justice,- and is intended to afford protection to a meritorious creditor, and to prevent the sweeping away of the fund or property from which in good conscience he ought to be paid. 25 R. C. L. 1343, § 26; Wilkins v. Gibson, 113 Ga. 31 (38 S. E. 374, 84 Am. St. R. 204); Butts County v. Jackson Banking Co., 129 Ga. 801 (4) (60 S. E. 149, 15 L. R A. (N.S.) 567, 121 Am. St. R. 244).

No. 6413.

April 16, 1928.

Equitable petition. Before Judge Searcy. Fayette superior court. November 26, 1927.

On November 16, 1926, Charles E. Thomas filed his petition against Beulah Smith, J. A. Lester, her guardian, and against the latter individually, in which he made these allegations: Beulah Smith is a person of unsound mind, and now confined at the State sanitarium. In 1920 Beulah Smith was in possession of five hundred acres of land known as the “old Lester home place,” under two voluntary deeds from John Lester. She is of such age that she will never have children. J. A. Lester is a remainderman, and will be seized and possessed of said property at her death. She was not of unsound mind in 1920 and 1921, but was capable of attending to her own business. She approached petitioner on or about March 1, 1921, and stated to him that there was a tax fi. fa. against her and this property, which would be levied unless some one would pay it off and have it transferred. On March 12, 1921, petitioner at her instance paid off the fi. fa. to one Peavy, a lawful constable, who thereupon transferred the same to petitioner. On March 24, 1921, said execution and transfer were entered on the general execution docket of Fayette County. The money which petitioner paid for said fi. fa. was paid over to the tax-collector of the county, and by him turned into the county treasury. Petitioner did not know that said constable had no right to transfer said fi. fa. to him. Said fi. fa. was for the sum of $174.99, with interest from December 20, 1920, and costs. Said fi. fa. was a lien against the entire property, and the same is subject to said fi. fa., both as to the life-tenant and the remainder-man. Beulah Smith has no personal property, and the only way in which this money can be collected is out of the above real estate. Petitioner in good faith paid said fi. fa. As soon as said fi. fa. was taken up by petitioner, Beulah Smith paid to him thereon the sum of $95, and there is now due on said fi. fa. $152.63. The payment of the amount due on said fi. fa. to the tax-collector of the county, and the turning of the same into the treasury of the county, made petitioner the holder of the legal and equitable title of said fi. fa., and entitled to the same rights that the county had thereunder. Petitioner prayed for a special lien against said property, for general judgment against Beulah Smith, that the legal title to the fi. fa. be decreed to be in him, that he be entitled to enforce the same, and for general relief.

4. When a person at the instance of the defendant in a tax fl. fa., and under an agreement between them that such person shall pay off the fl. fa. and take a transfer thereof to secure him for the money so paid, pays the same to a constable who holds the fl. fa. for collection, ignorantly supposing that the constable is the proper officer to transfer, the fi. fa., and takes from the constable such transfer, and where the constable delivers the money to the tax-collector, who turns the same into the county treasury, the person paying such money will be subrogated to the lien of the county and State for such taxes. This is not a ease of a volunteer buying up a tax fl. fa.

5. The present action being brought to enforce the lien of the State and county for these taxes, to which the plaintiff became thus subrogated; and as such lien can be enforced within seven years from its accrual (Civil Code, § 1147), the present action was not barred, although it would be barred as an action for money had and received by the defendant in the tax fi. fa. from the plaintiff.

6. As the plaintiff did not acquire a valid transfer of the tax fi. fa., he is unable to enforce the collection thereof by levy and sale; and for this reason there is no adequate and complete remedy.at law. To enforce his rights he has to resort to equity and the doctrine of subrogation, which rests upon principles of equity and justice.

7. Applying the above principles, the court erred in sustaining the demurrer to the petition. Judgment reversed.

All the Justices concur.

The defendants demurred to the petition, upon the grounds: (a) that it set forth no cause of action; (b) that the facts do not authorize the relief sought, and is without any equity; (c) that there is a misjoinder of parties defendant; (d) that the plaintiff has a complete and adequate remedy at law; and (e) that the petition shows the plaintiff is suing for money had and received, and it appears from the petition that said cause of action is barred by the statute of limitations, more than four years having elapsed since plaintiff’s cause of action accrued. The trial judge sustained the demurrer and dismissed the petition. To this judgment the plaintiff excepted in the language quoted in the first headnote.

W. G. Munday .and G. E. Cornwell, for plaintiff.

J. W. Culpepper, for defendants.  