Direction to sheriffs of executions against tax collectors, tax receivers, and tax commissioners; suspension of collection; property bound; proceedings of sale.

(d) The proceedings in selling property under such executions shall be the same as under executions issued from the superior court. History. Laws 1804, Cobb’s 1851 Digest, pp. 1051, 1052; Code 1863, §§ 834, 835, 836, 837; Code 1868, §§ 913, 914, 915, 916; Code 1873, §§ 911, 912, 913, 914; Code 1882, §§ 911, 912, 913, 914; Civil Code 1895, §§ 925, 926, 927, 928; Civil Code 1910, §§ 1188, 1189, 1190, 1191; Ga. L. 1917, p. 198, § 1; Code 1933, §§ 92-5508, 92-5509, 92-5510, 92-5511; Code 1933, § 91A-1385, enacted by Ga. L. 1978, p. 309, § 2. JUDICIAL DECISIONS Prohibition against entertaining affidavit of illegality is constitutional. — Courts are prohibited from entertaining an affidavit of illegality to an execution proceeding against a defaulting tax collector and the collector’s sureties. The prohibition is constitutional. Eve v. State, 21 Ga. 50, 1857 Ga. LEXIS 5 (1857). Date and priority of county’s lien on property of tax collector and collector’s surety. — From the day of execution of the bond by the tax collector and collector’s surety, the county has a lien upon the collector’s property and that of the collector’s surety, subject only to the superior lien of the state for taxes due the state. Lamar County Advisory Bd. v. McCalley, 181 Ga. 329, 182 S.E. 6, 1935 Ga. LEXIS 81 (1935). Priority of county’s lien on property of tax collector and collector’s surety. — When, in an equitable proceeding between the parties with claims to the proceeds of performance bonds deposited with the state by a surety for a county tax collector, no claimant having obtained any judgment prior to the equitable proceeding, and when a county intervened in such equitable proceeding with its claim for loss sustained by default of its tax collector prior to the equitable proceeding, the county was entitled in equity, by virtue of the superior lien given it by the General Assembly, to priority in payment from bond proceeds. Lamar County Advisory Bd. v. McCalley, 181 Ga. 329, 182 S.E. 6, 1935 Ga. LEXIS 81 (1935). Liability of otherwise exempt property. — Setting apart of a homestead to the family of a tax collector out of the collector’s property does not protect the property from liability to an execution issued by the comptroller general (now commissioner) against the collector and the collector’s sureties for a default. Brooks v. State, 54 Ga. 36, 1875 Ga. LEXIS 63 (1875). Defendant cannot levy execution against codefendant or cosurety. — When one of the defendants in an execution is the sheriff of the county, the sheriff is a party at interest, and cannot levy the execution upon the property of the cosurety and codefendant. The disability of the levying officer being apparent on the face of the papers, the levy may be dismissed on motion of the claimant. State v. Jeter, 60 Ga. 489, 1878 Ga. LEXIS 514 (1878). Subrogation of surety. — When the sureties for a defaulting tax collector pay off the execution against the collector and take control of the execution, they are subrogated to the rights of the state, and become entitled to the same lien that the state has on all the property of the principal at the time the principal gave the bond. Irby v. Livingston, 81 Ga. 281, 6 S.E. 591, 1888 Ga. LEXIS 108 (1888). Remedies available to one who claims one is not bound on tax collector’s bond. — Mandamus will not lie as a remedy to compel a sheriff to accept an affidavit of illegality filed to an execution issued by the comptroller general (now commissioner) against a tax collector in default and the collector’s bondsmen, and levied on the property of one of the alleged bondsmen, who avers in one’s affidavit of illegality that one did not sign the tax collector’s bond, or authorize anyone else to do so for the tax collector. In such case, an equitable petition for injunction is an available remedy when filed by a bondsman. Webb v. Newsom, 138 Ga. 342, 75 S.E. 106, 1912 Ga. LEXIS 303 (1912). When execution may be resisted in judicial proceedings. — Tax executions may be resisted in judicial proceedings when there is an unconstitutional exaction, because what is then called a tax is no tax, since the law does not impose the tax or authorize the execution, for the same reason, and since the defendants did not occupy the official positions alleged in the execution. Mayo v. Renfroe, 66 Ga. 408, 1881 Ga. LEXIS 33 (1881). Money raised by execution cannot be diverted by judicial interference. — Money raised by a sheriff, under an execution issued by the comptroller general (now commissioner) against a delinquent tax collector, cannot be diverted, by judicial interference, from the payment of such execution. The sheriff cannot be required by rule to pay the money to the plaintiff in a judgment older than the comptroller’s (now commissioner’s) process. The sheriff’s duty is to remit to the comptroller (now commissioner) without delay. Goldsmith v. Kemp, 58 Ga. 106, 1877 Ga. LEXIS 17 (1877). No authority for requiring sheriff to hold money pending court decision. — Whenever a sheriff has money in the sheriff’s hands collected from a defaulting tax collector, it is the sheriff’s duty to pay the money over to the comptroller general (now commissioner) at once. There is no lawful authority for any person to give the sheriff notice to hold it up until the person’s claim to the fund can be passed upon by a court. Wilson v. Wright, 83 Ga. 38, 9 S.E. 834, 1889 Ga. LEXIS 6 (1889). Neither taxpayer’s agent’s fraud nor suit on agent’s bond is ground for interference. — Courts will not entertain jurisdiction to enjoin an execution against a defaulting agent of a railroad on the ground that there is a suit pending, at the instance of the state, against the defaulting agent and their securities on their bond, or on the ground that the amount for which the agent is a defaulter was fraudulently used and embezzled by the agent. Scofield v. Perkerson, 46 Ga. 325, 1872 Ga. LEXIS 68 (1872). Courts have no power to prescribe evidentiary requirements for issuance of executions. — Issuing of executions by the comptroller general (now commissioner) to collect the public revenue due to the state is the act of the executive department of the government. The courts have no power to prescribe the kind or sufficiency of the evidence which shall be necessary to authorize the process of execution to issue against defaulting officers or agents, or to restrain that department in pursuing this course. Scofield v. Perkerson, 46 Ga. 350, 1872 Ga. LEXIS 69 (1872). OPINIONS OF THE ATTORNEY GENERAL Priority of state’s lien over security deed. — State has lien on property for faithful performance of duties superior to that of the security deed given after the tax collector goes into office. 1962 Ga. Op. Att'y Gen. 572. RESEARCH REFERENCES C.J.S. 33 C.J.S., Executions, § 106 et seq. 85 C.J.S., Taxation, §§ 1144, 1145.