History of section.

- While it is stated that this section is a codification of Craigmiles v. Gamble, 85 Ga. 439, 11 S.E. 838 (1890), that case and the principle of this section are really based upon Cumming v. Cumming, 3 Ga. 460 (1847). Powell v. Federal Land Bank, 175 Ga. 732, 165 S.E. 817 (1932).

Purpose of section.

- Principle upon which this section is based is that when one has purchased from another and paid value for property, so long as other property is owned by the grantor such property should on equitable principles be first applied to the payment of the debts of the grantor; and when liens exist on all of the property, that the lienors must make the money for which they have a lien out of the property owned by their grantor, before proceeding against that in the hands of the grantees for which the latter have paid value, thus making the debtor pay claims against the debtor out of the debtor's own property in preference to that belonging to others. Merchants Nat'l Bank v. McWilliams, 107 Ga. 532, 33 S.E. 860 (1899).

This section applies to liens and not to debts.

- After property is sold, it is not subject to a debt existing at the time of sale unless the debt constitutes a lien. Merchants Nat'l Bank v. McWilliams, 107 Ga. 532, 33 S.E. 860 (1899).

This section is applicable if tax liens accrue before security deeds are executed; on the other hand, if the tax lien accrued after the security deeds were executed, the taxes are prorated. Federal Land Bank v. Farmers' & Merchants' Bank, 177 Ga. 505, 170 S.E. 504 (1933).

This section is rule of contribution among purchasers, and does not affect right of creditor to levy upon any of the parcels subject to the execution. Much less would it affect the right of the state and county to levy upon any of the parcels for taxes. Decatur County Bldg. & Loan Ass'n v. Thigpen, 173 Ga. 363, 160 S.E. 387 (1931); City of Leesburg v. Forrester, 59 Ga. App. 503, 1 S.E.2d 584 (1939).

This section is not applicable as between purchaser and lien creditor.

- This section is restricted to the rights of the purchaser and the debtor as between themselves, and is applicable in all cases where their rights are to be settled. Hollinshed v. Woodard, 124 Ga. 721, 52 S.E. 815 (1906).

When owner encumbers property with security deed and then leases the property.

- This section is not applicable to protect a lessee's interest when an owner encumbers property with a security deed and then leases the property, but by analogy the holder of the deed will be required to subject the other property of the debtor to protect the interests of the lessee. Western Union Tel. Co. v. Brown & Randolph Co., 154 Ga. 229, 114 S.E. 36 (1922).

This section does not apply when it is alleged that tax sale was void for the reason that the tax executions should have been levied on the property of the defendant in execution last conveyed by security deed. Bibb County v. Elkan, 184 Ga. 520, 192 S.E. 7 (1937).

Property not "sold" when executory contract cancelled.

- Rescission or cancellation of an executory contract for the sale of land and the release of the purchaser from the payment of the purchase money due by the purchaser constitute an extinguishment of the contract of sale and put an end to the contract, and such transaction does not amount to a sale or alienation of the property by the vendee in such contract, in the sense in which the words "sold" and "alienation" are used in this section. Planters Whse. Co. v. Simpson, 164 Ga. 190, 138 S.E. 55 (1927).

Sale by sheriff under foreclosure of mortgage is in law treated as sale by owner, and when such sale was of the last parcel of property sold, the owner being insolvent, that parcel of property is chargeable with the payment of all taxes due by the owner to the state and county at the time of the sale. Powell v. Federal Land Bank, 175 Ga. 732, 165 S.E. 817 (1932).

Last property sold is primarily bound for payment of tax liens when property is sold at different times to different purchasers, and taxes having a lien on all the property sold are due. Powell v. Federal Land Bank, 175 Ga. 732, 165 S.E. 817 (1932).

Cited in Columbia Trust & Realty Co. v. Alston, 163 Ga. 83, 135 S.E. 431 (1926); Phoenix Mut. Life Ins. Co. v. Bank of Kestler, 170 Ga. 734, 154 S.E. 247 (1930); Richards v. Schoen Inv. Co., 174 Ga. 909, 164 S.E. 756 (1932); Johnson v. Bank of Commerce, 176 Ga. 699, 168 S.E. 767 (1933); Harris Orchard Co. v. Tharpe, 177 Ga. 547, 170 S.E. 811 (1933); Federal Land Bank v. Moultrie Banking Co., 178 Ga. 150, 172 S.E. 455 (1934); Boswell v. Federal Land Bank, 181 Ga. 258, 182 S.E. 1 (1935); Thomas v. Hudson, 190 Ga. 622, 10 S.E.2d 396 (1940).

ALR.

- Right of purchaser at judicial sale made subject to a purported lien to question validity thereof, 75 A.L.R. 1370; 171 A.L.R. 302.